PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT
MEMORANDUM
Date: September 12, 2024
To: Renata Vasquez, Partner, Labor & Employment, Calderwood & Harkness LLP
From: Nadia Petrov, Associate, Labor & Employment, Calderwood & Harkness LLP
Re: Investigation Plan and Scope — Thornwick Medical Research Institute Grievance Investigation (Dr. Marcus Ellender)
Matter No.: 1029-00002
Client: Thornwick Medical Research Institute (EIN: 04-3781256)
I. Purpose
This memorandum sets forth the proposed investigation plan for the independent workplace investigation that Calderwood & Harkness LLP ("C&H") has been engaged to conduct on behalf of Thornwick Medical Research Institute ("TMRI"), a Massachusetts 501(c)(3) nonprofit corporation headquartered at 480 Kendall Avenue, Cambridge, MA 02142. The purpose of this investigation plan is to provide a structured roadmap for the orderly, thorough, and defensible investigation of allegations of workplace misconduct that TMRI has brought to this firm's attention, and to ensure that the investigation is conducted in a manner that will withstand scrutiny should any of the underlying matters proceed to litigation, regulatory inquiry, or board-level remedial action.
The engagement was formalized pursuant to an engagement letter executed on September 10, 2024, signed by Elena Graff, General Counsel of TMRI, and Renata Vasquez, Partner, Labor & Employment, Calderwood & Harkness LLP. The engagement letter sets forth the scope of the investigation, fee arrangements, billing protocols, and respective obligations of C&H and TMRI.
The investigation concerns formal grievances filed by five TMRI employees between August 12, 2024 and September 4, 2024, alleging improper supervision practices by Dr. Marcus Ellender, Director of Biomedical Engineering Laboratories. The allegations span multiple categories of misconduct, including retaliation, hostile work environment, safety-protocol violations, and falsification or alteration of records. In the aggregate, the grievances present a serious pattern of alleged supervisory abuse that, if substantiated, implicates both state and federal employment and workplace-safety laws as well as TMRI's internal compliance obligations under its Employee Handbook, institutional policies, and federally funded grant agreements.
This memorandum outlines the following: (a) the identity of the respondent and complainants; (b) the categories of alleged misconduct and the applicable legal and policy frameworks; (c) the proposed interview schedule and methodology, including Upjohn warning protocols; (d) the document-collection strategy; (e) recommendations regarding administrative leave and parallel workstreams; (f) privilege and confidentiality considerations; (g) the anticipated timeline for completion of the investigation; (h) budget and staffing details; and (i) anticipated deliverables and next steps. Upon approval by Renata Vasquez, this memorandum will serve as the governing framework for the investigation.
II. Background
A. Client Overview
Thornwick Medical Research Institute was founded in 2003 as a Massachusetts 501(c)(3) nonprofit corporation dedicated to advancing biomedical research and translating laboratory discoveries into clinical applications. TMRI operates four biomedical research laboratories, designated Labs B-1 through B-4, as well as two clinical-trial coordination centers. The four laboratories are housed on the main campus at 480 Kendall Avenue, Cambridge, Massachusetts, in a purpose-built facility that includes biosafety-level-2 (BSL-2) containment areas, chemical-handling suites, and shared instrumentation facilities.
TMRI employs approximately 340 full-time employees, including 87 research scientists and lab technicians spread across the four laboratories. The remaining employees include administrative support staff, clinical-trial coordinators, grant-management personnel, environmental health and safety staff, and executive leadership. The organization's annual operating budget is approximately $62 million, funded primarily through grants from the National Institutes of Health ("NIH") and the Defense Advanced Research Projects Agency ("DARPA"), private foundation awards, and licensing revenues generated from three FDA-cleared Class II medical devices developed by TMRI research teams.
The relevant members of TMRI's senior leadership and governance structure are as follows:
• Chief Executive Officer: Dr. Philip Astbury
• General Counsel: Elena Graff
• Vice President of Human Resources: Grace Okenwa
• HR Investigator (preliminary intake): David Chu
• Board of Directors Chair: Dr. Constance Liu-Hartwell
• Vice Chair and Chair, Governance & Compliance Committee: Raymond Alcott
• Chair, Audit & Risk Committee: Teresa Dwight
Understanding the client's organizational structure, funding sources, and research operations is essential to framing the scope of this investigation because several of the allegations implicate TMRI's compliance obligations under federally funded grants and federal workplace-safety regulations, in addition to state-law employment protections.
B. Precipitating Events
Between August 12, 2024 and September 4, 2024, five TMRI employees filed formal written grievances pursuant to TMRI Employee Handbook § 7.3 ("Grievance and Complaint Procedure"). The grievances were received by the TMRI Human Resources Department and assigned to HR Investigator David Chu for preliminary intake. Mr. Chu conducted initial intake interviews with each of the five complainants, prepared intake summaries, and reported his preliminary findings to VP-HR Grace Okenwa.
On September 3, 2024, Grace Okenwa escalated the matter via internal memorandum to General Counsel Elena Graff. In her memorandum, Ms. Okenwa recommended the retention of outside counsel to conduct an independent investigation, citing the severity and volume of the allegations, the involvement of a senior laboratory director, the potential implications for ongoing NIH-funded research, and the risk that the matters could give rise to claims under federal and Massachusetts employment and workplace-safety laws. Ms. Okenwa further noted that the number of complainants, the overlapping factual allegations, and the nature of the alleged safety-protocol violations warranted a level of investigative rigor and independence beyond what the internal HR function could provide.
On September 6, 2024, Elena Graff contacted Renata Vasquez at Calderwood & Harkness LLP to discuss the engagement. After preliminary discussions regarding scope, methodology, and budget, the parties proceeded to formalize the engagement.
The engagement was formalized on September 10, 2024, pursuant to a written engagement letter signed by Elena Graff on behalf of TMRI and Renata Vasquez on behalf of C&H. The engagement letter identifies the following team:
• Billing Partner: Bernard Crawford
• Responsible Partner: Renata Vasquez
• Lead Associate: Nadia Petrov
• Working Associate: James Underwood
Hourly rates are set at $685 per hour for partners and $425 per hour for associates, with the estimated budget range for the investigation at $175,000 to $225,000, inclusive of professional fees and expenses. The engagement letter specifies that C&H's client is TMRI as the institutional employer, that the attorney-client privilege belongs to TMRI, and that C&H does not represent any individual employee, officer, or board member in connection with the investigation.
III. Identification of Parties
A. Respondent
Dr. Marcus Ellender, age 51, has served as Director of Biomedical Engineering Laboratories at TMRI since January 2018. In this role, Dr. Ellender has overall supervisory responsibility for all four biomedical research laboratories (Labs B-1 through B-4) and directly or indirectly supervises a total of 43 employees, including 23 research scientists, 14 lab technicians, and 6 postdoctoral fellows. He reports to Dr. Philip Astbury, CEO, and has regular operational interactions with the Environmental Health & Safety ("EHS") office, the Grants Management office, and the Institutional Biosafety Committee ("IBC").
Dr. Ellender's current annual compensation consists of a $247,000 base salary plus a $38,000 research-leadership stipend, for a total annual compensation of $285,000. He holds a Ph.D. in Biomedical Engineering from Carston University and, prior to joining TMRI, held a tenured faculty appointment at Keller-Whitfield College of Sciences, where he led a biomedical-engineering research group.
Dr. Ellender is currently named as the principal investigator on two active NIH R01 grants:
• Grant No. 5R01-EB029174 — awarded in 2022, with a five-year project period (2022–2027) and a total award amount of $2.9 million.
• Grant No. 1R01-EB034851 — awarded in 2023, with a five-year project period (2023–2028) and a total award amount of $1.9 million.
Together, these grants total $4.8 million in awarded funding, with combined remaining funds of approximately $3.1 million. The grant-compliance implications of the allegations — particularly those relating to falsification of records and safety-protocol violations — are discussed further in Section IV below.
As of the date of this memorandum, Dr. Ellender has not yet retained personal legal counsel. The investigation-notification letter to be delivered to Dr. Ellender on September 16, 2024 will advise him of his right to retain personal counsel at his own expense and to have such counsel present during his interview.
B. Complainants
The five complainants are identified below in the chronological order in which they filed their grievances. A summary of each complainant's employment history, grievance date, and principal allegations follows.
1. Dr. Yuna Sakata
Dr. Yuna Sakata is a Senior Research Scientist assigned to Lab B-2. She has been employed by TMRI since March 2019. Dr. Sakata filed her formal written grievance on August 12, 2024, making hers the earliest of the five grievances.
Dr. Sakata alleges that Dr. Ellender retaliated against her following her oral report of a chemical spill in Lab B-2 to EHS Director Alan Murdoch on August 2, 2024. Specifically, she alleges that within 11 business days of her safety report, she was reassigned from her primary role on the research team supported by NIH Grant No. 5R01-EB029174 to a lower-profile assignment involving sterilization-protocol review, without any stated justification for the reassignment.
In support of her allegations, Dr. Sakata has identified an email from Dr. Ellender to Lab B-2 Supervisor Joanna Pratt, dated August 9, 2024, which reportedly states: "Sakata is becoming a problem — move her off the grant and onto the sterilization-protocol review." This email, if authenticated, constitutes significant direct evidence of retaliatory intent, as it links the reassignment to Dr. Sakata's perceived "problem" status and was sent only seven calendar days after her safety report to the EHS office. The temporal proximity between the protected activity (the August 2, 2024 safety report) and the adverse action (the reassignment) is notably close and warrants thorough examination.
2. Trevor Hollins
Trevor Hollins is a Lab Technician III assigned to Lab B-3. He has been employed by TMRI since June 2020. Mr. Hollins filed his formal written grievance on August 19, 2024.
Mr. Hollins alleges that Dr. Ellender created a hostile work environment through verbal intimidation during lab meetings, including berating Mr. Hollins in front of colleagues, using demeaning language, and making threatening remarks regarding Mr. Hollins's continued employment. Additionally, and of particular significance, Mr. Hollins alleges that Dr. Ellender authored two safety-incident reports — specifically, Incident Reports IR-2024-031 and IR-2024-038 — that contain false narrative descriptions attributing equipment failures to operator error by Mr. Hollins. Mr. Hollins contends that the equipment malfunctions in question were caused by pre-existing mechanical defects and that Dr. Ellender fabricated the operator-error narratives to deflect responsibility for ongoing equipment-maintenance deficiencies in Lab B-3.
The falsification allegations raise concerns that go beyond Mr. Hollins's individual grievance, as they implicate the integrity of TMRI's safety-reporting system and call into question whether other incident reports authored or supervised by Dr. Ellender may likewise contain inaccurate information.
3. Dr. Priya Chandrasekaran
Dr. Priya Chandrasekaran is a Postdoctoral Fellow assigned to Lab B-1. She has been employed by TMRI since September 2022. Dr. Chandrasekaran filed her formal written grievance on August 26, 2024.
Dr. Chandrasekaran alleges discriminatory scheduling practices, claiming that she was consistently assigned to less favorable shifts and weekend laboratory time while similarly situated postdoctoral fellows received more desirable schedules. She further alleges that she was denied conference-attendance opportunities that were provided to other postdoctoral fellows, thereby limiting her professional-development and networking opportunities at a critical stage in her academic career. Additionally, Dr. Chandrasekaran alleges that Dr. Ellender authored a retaliatory negative performance review of her work that was inconsistent with her prior evaluations and with the objective quality of her research output. She contends that the negative review was authored in response to concerns she raised to her direct supervisor about laboratory practices.
The nature of these allegations — particularly the discriminatory scheduling and denial of professional opportunities — will require us to examine whether Dr. Chandrasekaran's treatment was linked to any protected characteristic, including national origin, gender, or other categories protected under Massachusetts General Laws chapter 151B and Title VII of the Civil Rights Act of 1964.
4. Miguel Ferreira
Miguel Ferreira is a Lab Technician II assigned to Lab B-4. He has been employed by TMRI since January 2021. Mr. Ferreira filed his formal written grievance on August 30, 2024.
Mr. Ferreira alleges that Dr. Ellender directed him to bypass OSHA-mandated personal protective equipment ("PPE") protocols during time-sensitive experiments on at least three occasions between March and July 2024. Mr. Ferreira further alleges that when he raised safety concerns about these directives to the EHS office, Dr. Ellender threatened him with termination. These allegations present serious regulatory-compliance concerns, as they implicate OSHA's PPE standards codified at 29 C.F.R. § 1910.132 et seq. and potentially expose TMRI to OSHA enforcement action if substantiated.
The investigation will need to determine the specific dates and circumstances of each alleged PPE-bypass incident, identify any witnesses to the directives, and assess whether Mr. Ferreira's account is corroborated by the physical and documentary evidence, including any contemporaneous communications and EHS records.
5. Sandra Nix
Sandra Nix is a Research Associate assigned to Lab B-2. She has been employed by TMRI since November 2020. Ms. Nix filed her formal written grievance on September 4, 2024, making hers the most recent of the five grievances.
Ms. Nix alleges a hostile work environment and, critically, alleges that she personally witnessed Dr. Ellender instruct staff members to alter lab-notebook entries in order to conceal a biohazard-containment breach that occurred in Lab B-2 on September 14, 2023, involving BSL-2 materials. If substantiated, this allegation represents the most serious single claim in the investigation, as it implicates the integrity of TMRI's research records, the institution's compliance with NIH guidelines and biosafety protocols, and potentially the safety of laboratory personnel who may have been exposed to biohazardous materials without adequate notification or medical follow-up.
Ms. Nix's allegation overlaps with Trevor Hollins's separate claims of record falsification, and together these claims suggest a possible pattern of deliberate manipulation of TMRI's documentation by Dr. Ellender. The investigation will need to examine the physical lab notebooks at issue, compare original entries against any modified versions, and determine the chain of custody for these records.
C. Key Internal Personnel / Potential Witnesses
In addition to the five complainants and the respondent, the investigation will likely require interviews with the following individuals, who have been identified during the preliminary-intake phase as possessing potentially relevant information:
• Alan Murdoch, Director of Environmental Health & Safety — Mr. Murdoch received Dr. Sakata's oral report of the chemical spill in Lab B-2 on August 2, 2024. He may also have information regarding the September 14, 2023 biohazard-containment breach in Lab B-2, any EHS follow-up to that incident, and the general state of safety compliance in Labs B-1 through B-4.
• Joanna Pratt, Lab B-2 Supervisor — Ms. Pratt was the recipient of Dr. Ellender's August 9, 2024 email directing that Dr. Sakata be moved off the NIH grant. She has direct knowledge of the circumstances of Dr. Sakata's reassignment and may have additional information regarding Dr. Ellender's supervisory practices in Lab B-2.
• Karen Ashby, Lab Technician IV, Lab B-4 — Ms. Ashby has been identified as a potential corroborating witness for Miguel Ferreira's allegations regarding directed PPE bypass in Lab B-4. She was reportedly present in the laboratory during one or more of the alleged incidents.
• Derek Loomis, Research Associate, Lab B-4 — Mr. Loomis has also been identified as a potential corroborating witness for Mr. Ferreira's PPE-bypass allegations and may have firsthand observations of Dr. Ellender's directives regarding safety protocols in Lab B-4.
• David Chu, HR Investigator — Mr. Chu conducted the preliminary intake interviews with all five complainants prior to the matter's escalation to outside counsel. He possesses the intake summaries and his observations regarding the complainants' demeanor and credibility during the intake process.
Additional lab personnel in Labs B-1 through B-4 may be identified as potential witnesses during the course of the complainant and corroborating-witness interviews. The investigation team will evaluate the need to interview such additional witnesses on a rolling basis as the investigation progresses.
D. TMRI Points of Contact
The following individuals have been designated by TMRI as the primary points of contact for the investigation:
• Elena Graff, General Counsel — Ms. Graff serves as the primary legal contact for the investigation. All privileged communications regarding legal strategy, investigative findings, and recommendations will be directed to Ms. Graff. She is the authorized representative of TMRI for purposes of the attorney-client relationship.
• Grace Okenwa, Vice President of Human Resources — Ms. Okenwa serves as the primary operational contact and will serve as liaison for scheduling interviews, coordinating document collection, and facilitating access to TMRI facilities and personnel.
All substantive communications between C&H and TMRI personnel regarding the investigation should be routed through Ms. Graff and Ms. Okenwa to maintain appropriate controls and preserve the attorney-client privilege.
IV. Categories of Alleged Misconduct and Applicable Legal/Policy Frameworks
Based on the five grievances and the information developed during the preliminary-intake phase, the alleged misconduct can be organized into four principal categories. Each category is discussed below, together with the applicable legal and regulatory frameworks, relevant TMRI policies, and the key factual issues that the investigation will need to resolve.
A. Category 1: Retaliation
Nature of Allegations. Multiple complainants allege that Dr. Ellender took adverse employment actions against employees who reported safety concerns to the EHS office or raised complaints about laboratory practices. The core contention is that Dr. Ellender punished employees for engaging in protected activity — specifically, the good-faith reporting of workplace-safety violations and concerns about improper laboratory procedures.
Primary Complainants. Dr. Yuna Sakata, Miguel Ferreira, and Dr. Priya Chandrasekaran.
Applicable Legal Framework. The Massachusetts Whistleblower Protection Act, M.G.L. c. 149, § 185, provides protection for employees who report or threaten to report to a supervisor or a public body an activity, policy, or practice of the employer that the employee reasonably believes is in violation of a law or regulation, or that the employee reasonably believes poses a risk to public health or safety. The statute prohibits employers from retaliating against employees who engage in such protected activity. Retaliation may take the form of termination, demotion, reassignment, denial of opportunities, negative performance evaluations, threats, or other adverse employment actions.
Additionally, the Occupational Safety and Health Act's anti-retaliation provision, 29 U.S.C. § 660(c), prohibits employers from retaliating against employees who report safety hazards or exercise other rights under OSHA. Federal whistleblower protections under NIH grant regulations may also be implicated given TMRI's status as a federally funded research institution.
Applicable Internal Policy. TMRI Anti-Retaliation Policy HR-2021-009, which expressly prohibits retaliation against any employee who in good faith reports a violation of law, regulation, or TMRI policy, or who participates in an investigation of such a report.
Key Factual Issues to Investigate:
(a) Temporal proximity between protected activity and adverse action for each complainant alleging retaliation. The close temporal proximity in Dr. Sakata's case (11 business days) is particularly significant, but similar analysis must be conducted for Mr. Ferreira and Dr. Chandrasekaran.
(b) Whether documented, legitimate, non-retaliatory justifications exist for the adverse actions taken against the complainants. This will require examination of performance records, project-staffing decisions, scheduling protocols, and any contemporaneous documentation that Dr. Ellender or his supervisors may offer in explanation of the challenged actions.
(c) Whether Dr. Ellender was aware of the complainant's protected activity prior to taking the adverse action. In Dr. Sakata's case, the August 9 email to Joanna Pratt provides strong circumstantial evidence of awareness; similar evidence must be sought for the other complainants.
(d) Pattern evidence across multiple complainants. If the investigation reveals a recurring pattern of adverse actions following safety reports or complaints, such pattern evidence would significantly strengthen the retaliation findings and would be relevant to any subsequent litigation or regulatory proceeding.
B. Category 2: Hostile Work Environment
Nature of Allegations. Several complainants allege that Dr. Ellender created a hostile work environment through verbal intimidation during lab meetings, the use of demeaning language, discriminatory scheduling practices, and the imposition of punitive work assignments. These allegations encompass both statutory hostile-work-environment claims (which require a nexus to a protected characteristic) and policy-based claims under TMRI's Respectful Workplace Policy.
Primary Complainants. Trevor Hollins, Dr. Priya Chandrasekaran, and Sandra Nix.
Applicable Legal Framework. Massachusetts General Laws chapter 151B, § 4, prohibits unlawful discrimination in employment, including harassment based on protected characteristics such as race, color, religious creed, national origin, sex, gender identity, sexual orientation, age, genetic information, ancestry, and disability. To establish a hostile-work-environment claim under chapter 151B, a complainant must demonstrate that the harassing conduct was (i) unwelcome, (ii) based on a protected characteristic, (iii) sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment, and (iv) attributable to the employer through its knowledge and failure to take corrective action. Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., provides parallel federal protections.
It is important to note that the hostile-work-environment analysis under statute differs from the analysis under TMRI policy. A statutory claim requires a nexus to a protected characteristic; TMRI's Respectful Workplace Policy HR-2021-005 more broadly prohibits intimidation, demeaning conduct, and abusive behavior regardless of whether the conduct is directed at an individual on the basis of a protected characteristic. The investigation will assess the allegations under both frameworks.
Applicable Internal Policy. TMRI Respectful Workplace Policy HR-2021-005, which sets forth expectations for professional conduct in the workplace and prohibits bullying, intimidation, and abusive supervisory behavior.
Key Factual Issues to Investigate:
(a) Whether the alleged conduct was sufficiently severe or pervasive to alter the conditions of employment for the affected employees. This will require detailed accounts of the frequency, severity, and nature of the alleged intimidation and demeaning behavior.
(b) Whether the alleged conduct was directed at individuals on the basis of a protected characteristic. With respect to Dr. Chandrasekaran, the investigation will examine whether her national origin, gender, or any other protected characteristic may have motivated the discriminatory scheduling and denial of conference opportunities. With respect to Mr. Hollins and Ms. Nix, the investigation will probe for evidence of discriminatory animus or, alternatively, will assess the conduct under the broader TMRI policy framework.
(c) Whether TMRI had notice of the hostile-work-environment conditions and failed to take prompt and effective corrective action. This inquiry will encompass prior complaints, if any, about Dr. Ellender's supervisory conduct, as well as the adequacy of TMRI's response to the current grievances.
(d) The distinction between a statutory hostile-work-environment claim and a policy violation must be clearly delineated in the final report, as the remedial implications may differ.
C. Category 3: Safety-Protocol Violations
Nature of Allegations. Two complainants allege that Dr. Ellender directed employees to circumvent OSHA-mandated PPE requirements during laboratory experiments and that a biohazard-containment breach involving BSL-2 materials was improperly handled. These allegations raise regulatory-compliance concerns that extend beyond the employment-law context and implicate federal workplace-safety standards and NIH grant-compliance requirements.
Primary Complainants. Miguel Ferreira and Sandra Nix.
Applicable Legal and Regulatory Framework.
• OSHA PPE Standards: 29 C.F.R. § 1910.132 et seq. establishes the general requirement that employers provide and require the use of personal protective equipment where hazards are present that could cause injury or illness. Subsections address specific types of PPE, including eye and face protection (§ 1910.133), respiratory protection (§ 1910.134), and hand protection (§ 1910.138). If Dr. Ellender directed employees to bypass required PPE during aerosol-generating procedures or other hazardous activities, such directives would constitute direct violations of OSHA standards and expose TMRI to potential citations and penalties.
• NIH Guidelines: The NIH Guidelines for Research Involving Recombinant or Synthetic Nucleic Acid Molecules impose biosafety and containment requirements on institutions receiving NIH funding for research involving such materials. TMRI's NIH-funded grants may be subject to these guidelines, and the alleged biohazard-containment breach could trigger institutional reporting obligations.
• TMRI Internal EHS Protocols: TMRI maintains internal environmental health and safety protocols governing PPE use, biohazard containment, spill response, and incident reporting. These protocols are administered by the EHS office under the direction of Alan Murdoch.
Key Factual Issues to Investigate:
(a) The specific instances and dates of directed PPE bypass in Lab B-4 between March and July 2024. The investigation will seek to identify each occasion, the nature of the experiment being conducted, the PPE that was allegedly bypassed, and the identity of any witnesses.
(b) The September 14, 2023 biohazard-containment breach in Lab B-2 involving BSL-2 materials. The investigation will examine the nature and scope of the breach, the response taken at the time, whether the EHS office was properly notified, whether the Institutional Biosafety Committee was informed, and whether any employees were exposed to biohazardous materials without adequate protective measures.
(c) Whether EHS was properly notified of all relevant safety incidents and whether OSHA mandatory-reporting obligations were satisfied.
(d) Whether OSHA recordkeeping requirements (29 C.F.R. Part 1904) were met with respect to any injuries or exposures arising from the alleged safety-protocol violations.
(e) Coordination with any parallel EHS audit. As discussed further in Section VII.C, we recommend that TMRI engage an independent EHS consulting firm to conduct a parallel safety-compliance audit of Labs B-1 through B-4 to assess current conditions and identify any ongoing compliance deficiencies that may require immediate remediation.
Recommendation. We recommend that TMRI engage an independent EHS consultant to conduct a parallel safety-compliance audit of Labs B-1 through B-4. The purpose of this audit would be to supplement the investigation's findings on safety-protocol violations and to provide independent documentation of current laboratory conditions. This audit would serve both a compliance purpose and a risk-mitigation purpose, enabling TMRI to demonstrate to regulators and to its Board of Directors that it has taken proactive steps to assess and address safety concerns.
D. Category 4: Falsification or Alteration of Records
Nature of Allegations. Two complainants allege that Dr. Ellender directed the alteration of laboratory-notebook entries and authored safety-incident reports containing false narratives. These allegations, if substantiated, represent serious violations of research-integrity standards, institutional policy, and potentially federal law.
Primary Complainants. Sandra Nix (lab-notebook alteration) and Trevor Hollins (falsified incident reports).
Specific Records at Issue.
• Lab-Notebook Pages from Lab B-2, September–October 2023 Entries. Sandra Nix alleges that original lab-notebook entries she authored documenting the September 14, 2023 biohazard-containment breach were subsequently altered by or at the direction of Dr. Ellender to minimize the scope and severity of the breach. Ms. Nix alleges that the alterations involved modifications to the descriptions of the materials involved, the extent of the containment failure, and the response measures taken. Approximately 15 pages of lab-notebook entries have been flagged by Ms. Nix as potentially altered.
• Safety-Incident Reports IR-2024-031 and IR-2024-038. Trevor Hollins alleges that these two incident reports, authored by Dr. Ellender, contain narrative descriptions inconsistent with the actual events, attributing equipment malfunctions to operator error by Mr. Hollins when, in fact, the equipment failures were caused by pre-existing mechanical defects.
Key Factual Issues to Investigate:
(a) Forensic comparison of original versus allegedly altered lab-notebook entries. This will require examination of the physical lab notebooks to identify evidence of overwriting, erasure, or insertion of new text, as well as comparison of the original entries (if preserved in any form) against the current state of the notebooks. Scanned or digital copies, if any, will provide a baseline for comparison.
(b) Handwriting analysis. If the physical notebooks reveal entries or modifications in handwriting inconsistent with the original author's hand, forensic handwriting analysis may be warranted.
(c) Comparison of the narrative descriptions in incident reports IR-2024-031 and IR-2024-038 against contemporaneous email correspondence, equipment-maintenance logs, and other records that may corroborate or contradict the incident-report narratives.
(d) Whether other records — including lab notebooks from Labs B-1, B-3, or B-4, or other safety-incident reports — may also have been altered. The investigation will probe for a broader pattern of record manipulation beyond the specific instances identified by Ms. Nix and Mr. Hollins.
(e) Chain of custody for the physical lab notebooks. Establishing the chain of custody is essential to ensuring that the notebooks are preserved in their current condition and that any forensic analysis will be reliable. The litigation-hold memorandum discussed in Section VII.A will address the preservation of these materials.
Applicable Considerations. The allegations of record falsification have potential implications beyond the employment-law context. If substantiated, they could implicate TMRI's compliance obligations under its NIH grant agreements, which require the maintenance of accurate research records. Falsification of research data or records may trigger reporting obligations to the NIH Office of Research Integrity ("ORI") and could jeopardize TMRI's eligibility for continued federal funding. Additionally, the Institutional Biosafety Committee ("IBC") has independent reporting obligations regarding biohazard-containment breaches, and the concealment of such a breach may constitute a separate compliance violation.
V. Proposed Investigation Methodology
A. Upjohn/Corporate-Miranda Warnings
All witness interviews conducted during the investigation will begin with an Upjohn warning, also known as a corporate-Miranda warning, consistent with the framework established in Upjohn Co. v. United States, 449 U.S. 383 (1981). The purpose of the Upjohn warning is to ensure that each witness understands the nature of the investigation, the role of counsel, and the scope of any privilege that applies to the interview.
Specifically, each witness will be advised of the following at the outset of the interview:
(a) Calderwood & Harkness LLP represents Thornwick Medical Research Institute as the employer. C&H does not represent any individual employee, including the witness.
(b) The attorney-client privilege for the investigation belongs to TMRI, not to the individual witness. Any communications during the interview are privileged on behalf of TMRI.
(c) TMRI may choose, in its sole discretion, to waive the attorney-client privilege and disclose the contents of the interview to third parties, including regulators, courts, or other persons.
(d) The conversation is confidential, and the witness should not discuss the substance of the interview with coworkers, supervisors, or other individuals, except as necessary to consult with the witness's own personal attorney.
(e) The witness is expected to cooperate fully with the investigation and to provide truthful and complete information.
The Upjohn warning will be delivered orally at the beginning of each interview session, and the interviewer will confirm that the witness understands the warning before proceeding. James Underwood, in his role as note-taker, will document the delivery of the Upjohn warning and the witness's acknowledgment in the interview notes.
B. Interview Plan
The interview plan is organized into four phases: (1) complainant interviews, (2) corroborating-witness interviews, (3) the respondent interview, and (4) follow-up interviews as needed. The phased approach is designed to ensure that the investigation team has a thorough understanding of the complainants' allegations and available documentary evidence before conducting the respondent interview, thereby enabling the investigation team to present Dr. Ellender with specific allegations and evidence and to obtain his response.
1. Complainant Interviews (5 Sessions)
Proposed Schedule: September 23, 2024 through approximately October 11, 2024.
Each complainant will be interviewed individually in a private conference room at TMRI's campus or, if the complainant prefers, at C&H's Boston office at One Federal Place, Suite 3200, Boston, MA 02110. Interviews are expected to last between 90 minutes and two hours each, depending on the complexity of the individual complainant's allegations and the extent of supporting documentation.
Interviewers: Nadia Petrov will serve as lead interviewer, and James Underwood will serve as note-taker. Renata Vasquez will participate in key interviews as needed, particularly where the allegations raise complex legal issues or where the witness's testimony is anticipated to be central to the investigation's findings.
Order of Interviews. The complainant interviews will be conducted in the following order:
1. Dr. Yuna Sakata — Dr. Sakata's interview will be conducted first because she filed the earliest grievance (August 12, 2024) and because the retaliation timeline in her case is the most time-sensitive. The August 9, 2024 email from Dr. Ellender to Joanna Pratt is a critical piece of evidence that should be explored early in the investigation.
2. Trevor Hollins — Mr. Hollins's interview will focus on the hostile-work-environment allegations and the incident-report falsification claims, which intersect with Sandra Nix's lab-notebook-alteration allegations.
3. Dr. Priya Chandrasekaran — Dr. Chandrasekaran's interview will explore the discriminatory-scheduling and conference-attendance allegations, as well as the retaliatory performance-review claim. This interview will require careful inquiry into whether Dr. Chandrasekaran's treatment may have been motivated by a protected characteristic.
4. Miguel Ferreira — Mr. Ferreira's interview will focus on the PPE-bypass directives and the threat of termination for raising safety concerns. This interview will seek to identify specific dates, experiments, and witnesses for each alleged incident.
5. Sandra Nix — Ms. Nix's interview will be conducted last among the complainants because her allegations — particularly the lab-notebook-alteration claim — are the most complex and because the investigation team will benefit from the context provided by the other complainant interviews before addressing Ms. Nix's testimony. Her account of the September 14, 2023 biohazard-containment breach will require detailed exploration.
Topics for each interview will be tailored to the individual complainant's specific allegations. However, each interview will also probe for cross-cutting knowledge of the other allegations. For example, Dr. Sakata and Sandra Nix are both assigned to Lab B-2 and may have overlapping knowledge; Miguel Ferreira, Karen Ashby, and Derek Loomis are all assigned to Lab B-4 and may corroborate one another's accounts.
2. Corroborating-Witness Interviews (Estimated 6–10 Sessions)
Proposed Schedule: Approximately October 14, 2024 through October 18, 2024.
Following completion of the complainant interviews, the investigation team will conduct interviews with corroborating witnesses identified during the complainant-interview phase and the preliminary-intake process. The initial list of corroborating witnesses includes, at minimum, the following individuals:
• Alan Murdoch, Director of Environmental Health & Safety
• Joanna Pratt, Lab B-2 Supervisor
• Karen Ashby, Lab Technician IV, Lab B-4
• Derek Loomis, Research Associate, Lab B-4
• David Chu, HR Investigator
Additional lab personnel from Labs B-1 through B-4 may be added to the witness list as the complainant interviews yield new information and identify additional individuals with relevant knowledge. The investigation team anticipates conducting between 6 and 10 corroborating-witness interviews in total, depending on the scope of information developed during the complainant-interview phase.
Interviewers: Nadia Petrov will serve as lead interviewer, and James Underwood will serve as note-taker.
3. Respondent Interview (Dr. Marcus Ellender)
Proposed Schedule: Following completion of the complainant and corroborating-witness interviews, the respondent interview is estimated for late October 2024, approximately October 23–24, 2024.
Dr. Ellender will be notified of the investigation and of his interview via an investigation-notification letter to be sent on September 16, 2024. The notification letter will advise Dr. Ellender of the general nature of the allegations, the fact that an independent investigation is being conducted by outside counsel, and his right to retain personal counsel at his own expense. The notification letter will further advise that Dr. Ellender may have personal counsel present during his interview, but that the investigation is being conducted on behalf of TMRI and that C&H represents only the institutional employer.
Interviewers: Renata Vasquez will serve as lead interviewer for the respondent interview, given the seniority of the respondent and the complexity of the allegations. Nadia Petrov will serve as co-interviewer and note-taker. If Dr. Ellender retains personal counsel, such counsel will be permitted to attend the interview session.
A full Upjohn warning will be administered at the outset of the interview. The interview will cover all four categories of alleged misconduct — retaliation, hostile work environment, safety-protocol violations, and record falsification — and will allow Dr. Ellender the opportunity to respond to specific allegations and to the documentary evidence gathered during the investigation. Dr. Ellender will be asked to identify any documents, witnesses, or other evidence that he believes supports his position.
4. Follow-Up Interviews
The investigation team will reserve time during early to mid-November 2024 for follow-up interview sessions as needed. Follow-up interviews may be necessary to address new information developed during the document-review process or during the respondent interview, to resolve inconsistencies between witness accounts, or to pursue additional lines of inquiry identified during the course of the investigation.
C. Document-Collection Strategy
A comprehensive document-collection and review process is essential to the investigation. The document-collection strategy is designed to ensure that all potentially relevant materials are identified, preserved, collected, and reviewed in a systematic and defensible manner.
Litigation Hold. General Counsel Elena Graff is expected to issue a litigation-hold memorandum on September 13, 2024, directing the preservation of all potentially relevant documents by specified custodians. The litigation hold is discussed further in Section VII.A below.
Document Categories Targeted for Collection. The investigation team has identified the following categories of documents for collection:
1. Email correspondence from Dr. Ellender's TMRI email account, covering the date range of January 1, 2023 through September 18, 2024. Based on information provided during the HR intake phase, the preliminary estimate is approximately 312 email threads. The email collection may be expanded to include email accounts of other relevant custodians (e.g., Joanna Pratt, Alan Murdoch) as warranted by the investigation's development.
2. Safety-incident reports filed for Labs B-1 through B-4, covering calendar years 2022 through 2024. Particular focus will be directed to Incident Reports IR-2024-031 and IR-2024-038, which are specifically identified in Trevor Hollins's grievance.
3. Lab-notebook pages from Lab B-2, September through October 2023 entries, both original physical notebooks and any scanned or digital copies. Approximately 15 pages have been flagged for potential alteration based on Sandra Nix's grievance. The physical notebooks must be secured and their chain of custody documented.
4. Performance-evaluation forms authored by Dr. Ellender covering all direct reports in Labs B-1 through B-4 for the relevant period. Based on the number of direct reports and the typical annual or semi-annual evaluation cycle, the estimated number of forms is approximately 28.
5. TMRI EHS audit reports for the relevant period (2022–2024). Based on the typical schedule for EHS audits, the estimated number of reports is approximately 6.
6. Scheduling records, meeting minutes, and attendance logs for laboratory meetings and conferences relevant to Dr. Chandrasekaran's claims of discriminatory scheduling and denial of conference-attendance opportunities.
7. Grant-progress reports for NIH Grant Nos. 5R01-EB029174 and 1R01-EB034851, which will provide context regarding the research activities conducted under Dr. Ellender's supervision and the allocation of personnel to grant-funded projects.
8. HR files for all five complainants and for Dr. Ellender, including prior complaints (if any), disciplinary history, employment applications, offer letters, position descriptions, and all other employment records maintained by TMRI's HR department.
Document-Collection and Review Log. James Underwood will be responsible for creating and maintaining a document-collection and review log that tracks, for each document or set of documents: document identification number, custodian, document type, date range, relevance designation, privilege designation, and reviewer notes. This log will serve as the central reference for the document-review process and will be maintained as confidential attorney work product.
Estimated Collection Volume. Based on the preliminary estimates for each document category, the total collection is anticipated to comprise approximately 1,200 to 1,300 documents. This estimate may be revised upward or downward as the collection process proceeds and as the complainant interviews yield additional information regarding relevant documents.
Target Completion. The target date for completion of the document-production review is on or before October 21, 2024, prior to the scheduled respondent interview.
VI. Administrative Leave Recommendation
We recommend that TMRI place Dr. Marcus Ellender on paid administrative leave pending the completion of the investigation, effective as soon as practicable after delivery of the investigation-notification letter. The proposed effective date is September 18, 2024.
The rationale for this recommendation is threefold:
First, placing Dr. Ellender on administrative leave will serve to prevent potential ongoing retaliation against the five complainants during the pendency of the investigation. Given the nature and pattern of the alleged retaliation, and the fact that Dr. Ellender currently exercises direct supervisory authority over personnel in Labs B-1 through B-4 — including several of the complainants and potential witnesses — allowing Dr. Ellender to continue in his supervisory role during the investigation would create an unacceptable risk of further retaliatory conduct or of complainants and witnesses being deterred from participating fully in the investigation.
Second, administrative leave will help preserve the integrity of the evidence, particularly the physical lab notebooks that are at the center of Sandra Nix's record-alteration allegations. So long as Dr. Ellender has access to the laboratories and to the physical records maintained therein, there is a risk that relevant documents could be further altered, removed, or destroyed.
Third, administrative leave will ensure that the investigation can proceed without interference or the appearance of interference from the respondent. The investigation's credibility and defensibility depend on its being conducted in an environment free from undue pressure or influence by the individual under investigation.
Paid administrative leave preserves Dr. Ellender's full compensation and benefits during the investigation period and does not constitute a disciplinary action. Rather, it is a precautionary measure taken to protect the integrity of the investigative process, consistent with TMRI Employee Handbook § 7.3, which authorizes TMRI to take appropriate interim measures during the pendency of a grievance investigation. The notification letter to Dr. Ellender should expressly state that the administrative leave is non-disciplinary and that Dr. Ellender will continue to receive his regular compensation and benefits during the leave period.
VII. Coordination with Parallel Workstreams
A. Litigation Hold
General Counsel Elena Graff has indicated her intention to issue a litigation-hold memorandum on September 13, 2024. The litigation-hold memorandum will be addressed to all relevant document custodians, including Dr. Ellender, Joanna Pratt, Alan Murdoch, lab supervisors for Labs B-1 through B-4, the Information Technology department, and the Human Resources department. The memorandum will direct the preservation of all documents and electronically stored information potentially relevant to the investigation, including but not limited to emails, text messages, lab notebooks, safety-incident reports, performance evaluations, scheduling records, meeting minutes, and any other materials that may bear on the allegations under investigation.
C&H will review the draft litigation-hold memorandum before its issuance to confirm that the scope of the hold is adequate to cover all document categories identified in Section V.C above and any additional categories that may become relevant as the investigation proceeds. C&H will also advise on appropriate custodian identification and on the IT procedures necessary to preserve electronically stored information, including the suspension of any automatic email-deletion policies applicable to the custodians' accounts.
B. EPLI Notice
TMRI maintains an Employment Practices Liability Insurance ("EPLI") policy with Meridian Indemnity Group. The relevant policy details are as follows:
• Carrier: Meridian Indemnity Group