CALDERWOOD & HARKNESS LLP One Federal Place, Suite 3200 Boston, MA 02110
Labor & Employment Practice Group
PRIVILEGED AND CONFIDENTIAL
September 16, 2024
Via Hand Delivery and Electronic Mail
Dr. Marcus Ellender Director, Biomedical Engineering Laboratories Thornwick Medical Research Institute 480 Kendall Avenue Cambridge, MA 02142
Re: Independent Investigation into Formal Grievances — Biomedical Engineering Laboratories C&H Matter No. 1029-00002
Dear Dr. Ellender:
1. Purpose of This Letter and Identification of Counsel
We write to inform you that Calderwood & Harkness LLP ("C&H") has been retained by Thornwick Medical Research Institute ("TMRI") to conduct an independent workplace investigation into formal grievances filed by multiple employees of TMRI's Biomedical Engineering Laboratories. The engagement between C&H and TMRI was formalized on September 10, 2024, pursuant to the direction of TMRI's General Counsel, Elena Graff, and with the authorization of TMRI's executive leadership.
The investigation is being led by the undersigned, Renata Vasquez, Partner in C&H's Labor & Employment practice group. Assisting in the investigation are Nadia Petrov, Associate, and James Underwood, Associate, both of C&H's Labor & Employment practice group. Together, we comprise the investigation team that will be responsible for all aspects of this matter.
At the outset, we wish to make clear an important point regarding the nature of our representation. C&H represents TMRI as the employer in connection with this investigation. C&H does not represent any individual employee of TMRI, including you, Dr. Ellender. The attorney-client privilege with respect to this investigation belongs solely to TMRI, and any communications between C&H and TMRI in connection with this investigation are privileged communications of the organization. You should not treat any communication you have with any member of the C&H investigation team as confidential or privileged as between you and C&H, and you should not rely upon any member of the investigation team for legal advice. This distinction is critical, and we encourage you to review Section 5 of this letter, which addresses your right to retain personal legal counsel.
2. Nature and Scope of the Investigation
Between August 12, 2024 and September 4, 2024, five current employees of TMRI filed formal written grievances pursuant to TMRI Employee Handbook § 7.3, which sets forth the "Grievance and Complaint Procedure" applicable to all TMRI personnel. Each of these grievances was submitted in writing, consistent with the requirements of that policy, and each was received and processed by TMRI's Office of Human Resources. The grievances pertain to alleged improper supervision practices within the Biomedical Engineering Laboratories, specifically Laboratory Units B-1 through B-4, of which you serve as Director.
While the specific details of the individual grievances will be discussed with you during the course of the investigative interviews, we are providing you with a summary of the categories of alleged misconduct that fall within the scope of this investigation so that you may be adequately informed and prepared to participate meaningfully in the process. The categories are as follows:
1. Retaliation. Multiple grievants allege that employees who reported safety concerns or raised compliance issues were subjected to adverse employment actions, including reassignment to less desirable shifts, exclusion from research projects, reduction in laboratory access privileges, and other forms of professional marginalization. These allegations potentially implicate the Massachusetts Whistleblower Protection Act, M.G.L. c. 149, § 185, which prohibits retaliation against employees who report or threaten to report activities that the employee reasonably believes to be in violation of a law, rule, or regulation. These allegations also potentially implicate TMRI Anti-Retaliation Policy HR-2021-009, which extends protections to employees who report concerns in good faith through internal channels.
2. Hostile Work Environment. Grievants allege a pattern of conduct that created a hostile, intimidating, or offensive work environment within the Biomedical Engineering Laboratories. Specific allegations include, but are not limited to, verbal intimidation and berating of staff in the presence of colleagues; discriminatory scheduling practices that disproportionately burdened certain employees on the basis of protected characteristics; and the assignment of punitive or demeaning work tasks as a form of discipline or retaliation outside of established corrective-action procedures. These allegations potentially implicate M.G.L. c. 151B, § 4, which prohibits workplace discrimination and harassment on the basis of protected characteristics, as well as Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and TMRI's Respectful Workplace Policy HR-2021-005.
3. Safety-Protocol Violations. Grievants allege that, under your direction or with your knowledge and acquiescence, certain safety protocols were circumvented or not enforced within Laboratory Units B-1 through B-4. Specific allegations include failures to require the use of OSHA-mandated personal protective equipment as required under 29 C.F.R. § 1910.132 et seq., as well as lapses in biohazard-containment protocols applicable to certain categories of biological specimens and reagents handled within the laboratories. The investigation will examine whether such alleged lapses occurred, and if so, whether they were attributable to supervisory direction, inadequate oversight, or other causes.
4. Falsification or Alteration of Records. Grievants allege that certain safety-incident reports and laboratory-notebook entries were falsified, altered, backdated, or otherwise manipulated. The investigation will examine the integrity of records maintained within the Biomedical Engineering Laboratories, including the chain of custody and version history of relevant documents, to determine whether any improper alterations occurred and, if so, the circumstances and responsible parties.
We emphasize that this letter does not constitute a finding, conclusion, or determination regarding any of the foregoing allegations. The allegations remain unproven at this stage, and the purpose of the investigation is to gather and evaluate evidence impartially. The purpose of this letter is to notify you formally of the investigation, to explain the process that will be followed, and to inform you of your rights and obligations in connection therewith.
3. Paid Administrative Leave
After careful consideration and in consultation with TMRI's General Counsel and Vice President of Human Resources, TMRI has determined that it is appropriate and necessary to place you on paid administrative leave effective September 18, 2024, pending the completion of the investigation. This decision has been made to preserve the integrity of the investigative process, to protect the rights of all parties, and to ensure the continued safe and orderly operation of the Biomedical Engineering Laboratories during the pendency of the investigation.
During the period of administrative leave, you will continue to receive your full base salary of $247,000 per year, paid in accordance with TMRI's regular payroll schedule. In addition, your research-leadership stipend of $38,000 per year will continue without interruption for the duration of the leave. Your enrollment in TMRI's benefits programs, including health insurance, retirement contributions, and other applicable benefits, will not be affected by the administrative leave, and you will continue to accrue paid time off in accordance with TMRI policy.
During the period of administrative leave, you are directed to comply with the following restrictions:
(a) You shall not enter TMRI laboratory facilities, including but not limited to Laboratory Units B-1, B-2, B-3, and B-4, or any other TMRI laboratory or research space, without prior written authorization from General Counsel Elena Graff or Vice President of Human Resources Grace Okenwa.
(b) You shall not contact, directly or indirectly, any subordinate staff member or other TMRI employee regarding any matter related to the investigation, the underlying grievances, or the circumstances giving rise thereto. This restriction applies to all forms of communication, including in-person contact, telephone calls, text messages, email, messaging applications, social media, and communication through third-party intermediaries.
(c) You shall not access TMRI information systems, including but not limited to TMRI email, laboratory information management systems (LIMS), electronic laboratory notebooks, shared network drives, cloud-based storage, or any other TMRI digital platform, except as specifically authorized in writing by General Counsel Elena Graff or Vice President of Human Resources Grace Okenwa.
These restrictions are administrative in nature and are not intended as punitive measures. They are standard protocols implemented to protect the integrity of the investigation and to safeguard the interests of all parties involved.
Any questions regarding the specific terms and conditions of your administrative leave, including questions about salary continuation, benefits, access to personal property at your TMRI office, or other logistical matters, should be directed to Grace Okenwa, Vice President of Human Resources, who may be reached at her office telephone number or via email at the address on file with TMRI's Human Resources department.
4. Obligation to Cooperate
Under TMRI Employee Handbook § 7.3, all employees of TMRI, regardless of position or seniority, are required to cooperate fully and in good faith with workplace investigations conducted by or at the direction of TMRI. This obligation encompasses the following:
(a) Participating in investigative interviews when requested by the investigation team, providing truthful, complete, and candid responses to all questions posed, and refraining from withholding material information;
(b) Responding in a timely manner to written information requests, document requests, and other inquiries from the investigation team;
(c) Preserving all potentially relevant documents and materials, as more fully described in Section 6 of this letter; and
(d) Otherwise conducting yourself in a manner that facilitates, rather than obstructs, the investigation.
Please be advised that failure to cooperate with this investigation, including refusal to participate in interviews, providing false or misleading information, withholding material information, or otherwise obstructing the investigative process, may constitute a separate and independent violation of TMRI policies and may result in disciplinary action up to and including termination of employment, irrespective of the outcome of the investigation into the underlying grievances.
You will be contacted by a member of the investigation team to schedule one or more investigative interviews at a mutually convenient time and location. We anticipate that the initial interview will take place within approximately ten to fourteen business days of the date of this letter. We will endeavor to provide you with reasonable advance notice of the interview date, time, and location, as well as a general description of the topics to be covered, so that you may prepare adequately.
5. Right to Retain Personal Legal Counsel
We wish to reiterate that C&H represents TMRI and does not represent you individually. You are hereby advised that you have the right to retain personal legal counsel of your own choosing and at your own expense in connection with this investigation. The decision whether to retain personal counsel is entirely yours to make, and TMRI will not draw any adverse inference from your decision to do so.
If you elect to retain personal legal counsel, we ask that you promptly provide the name, firm affiliation, mailing address, telephone number, and email address of your attorney to the investigation team so that interview scheduling and all related communications can be properly coordinated through your counsel.
Your personal counsel, if retained, may attend any investigative interview conducted with you by the C&H investigation team. However, your counsel's participation in the interview will be subject to the ground rules established by the investigation team, which will be communicated to your counsel in advance of the interview. Generally, these ground rules permit counsel to be present in an advisory capacity and to consult privately with you during breaks, but do not permit counsel to direct your answers, make objections, or otherwise interpose themselves into the interview process. These ground rules are standard for workplace investigations of this nature and are designed to ensure that the interview process is fair, efficient, and productive.
We reiterate for emphasis: C&H does not represent you personally. You should not treat any communication with any member of the C&H investigation team as confidential or privileged as to you individually. Any information you share with the investigation team may be disclosed to TMRI and may be used by TMRI in making employment decisions. If you have questions about your legal rights or your exposure in connection with this investigation, you should consult with your own attorney.
6. Document Preservation Obligations
A formal litigation-hold memorandum was issued by TMRI General Counsel Elena Graff on September 13, 2024, and you should have received or will shortly receive a copy of that memorandum. The litigation-hold memorandum sets forth TMRI's document-preservation requirements in detail. This letter serves as an additional and independent reminder of your personal obligation to preserve all documents and electronically stored information ("ESI") that may be relevant to the investigation.
Your preservation obligations extend to all documents and ESI in your possession, custody, or control, whether stored on TMRI systems or on personal devices, accounts, or storage media, including but not limited to the following categories of materials:
• Email messages (sent, received, drafted, or deleted) relating to the supervision, management, evaluation, scheduling, or discipline of personnel within Laboratory Units B-1 through B-4;
• Text messages, instant messages, and communications via messaging applications (e.g., Meridian Solutions, Northgate Data Systems, Meridian Services Inc., signal, or similar platforms) relating to the foregoing topics;
• Calendar entries, meeting invitations, and scheduling records;
• Laboratory notebooks, whether in physical or electronic format;
• Safety-incident reports, near-miss reports, and related documentation;
• Performance-evaluation forms, annual reviews, mid-year reviews, and related performance documentation;
• Correspondence and memoranda, whether internal or external, relating to personnel matters, safety compliance, or laboratory operations within Labs B-1 through B-4;
• Notes, annotations, margin comments, or other markings on any of the foregoing categories of documents; and
• Any other records, in any format, that relate to or may be relevant to the subject matter of the investigation.
You must not delete, alter, modify, destroy, discard, shred, overwrite, or remove from TMRI premises any documents or materials falling within the scope of your preservation obligations. This prohibition applies to both physical documents and ESI, and extends to metadata, version histories, and backup copies. You must take affirmative steps to ensure that automatic deletion functions on your devices and accounts (such as auto-delete settings for text messages or email purge schedules) are suspended for the duration of the investigation.
Violation of these document-preservation obligations may have serious consequences, including adverse inferences in any subsequent legal proceeding, sanctions, and disciplinary action up to and including termination of employment. If you have any questions about whether a particular document or category of documents falls within the scope of your preservation obligations, you should err on the side of preservation and contact the investigation team or TMRI General Counsel for guidance.
7. Confidentiality
This investigation is being conducted as a privileged matter at the direction of TMRI. You are directed to maintain strict confidentiality regarding all aspects of the investigation. Specifically, you are directed to refrain from:
(a) Discussing the substance of the investigation, including the allegations described in this letter or any details that may come to your attention during the investigative process, with any TMRI employee, contractor, vendor, or other individual, except as set forth below;
(b) Disclosing or attempting to ascertain the identity of the complainants, witnesses, or other individuals who have provided or may provide information in connection with the investigation;
(c) Sharing, copying, forwarding, or otherwise disseminating the contents of this letter, or any other communications from the investigation team, with any person other than your personal legal counsel, if retained; and
(d) Posting or publishing any information regarding the investigation on social media, internet forums, professional networking platforms, or any other public or semi-public medium.
The foregoing confidentiality obligations do not preclude you from discussing the investigation with your personal legal counsel, if retained, or with the investigation team itself. You may also communicate with General Counsel Elena Graff or Vice President of Human Resources Grace Okenwa regarding logistical and administrative matters related to your administrative leave, as described in Section 3 above.
Confidentiality is essential to protect the integrity of the investigation, to prevent the tainting of witness testimony, and to safeguard the rights, reputations, and privacy of all parties involved, including your own. Breach of these confidentiality obligations may constitute a separate violation of TMRI policies and may result in disciplinary action.
8. Anti-Retaliation Notice
TMRI strictly prohibits retaliation against any individual who files a grievance, participates in or cooperates with a workplace investigation, provides information or testimony in good faith, or exercises rights protected by law or TMRI policy. This prohibition applies to all forms of retaliation, whether direct or indirect, and encompasses adverse employment actions, threats, intimidation, harassment, coercion, interference, and any other conduct that could reasonably be perceived as retaliatory.
This prohibition is set forth in TMRI Anti-Retaliation Policy HR-2021-009 and is further supported by applicable law, including the Massachusetts Whistleblower Protection Act, M.G.L. c. 149, § 185, as well as the anti-retaliation provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), and other applicable federal and state statutes.
You are hereby placed on notice that any act of retaliation or perceived retaliation by you against any complainant, witness, or other individual in connection with this investigation — whether committed during the period of your administrative leave or at any time thereafter — may result in separate and independent disciplinary action, up to and including termination of employment, and may also expose you to personal legal liability. The restrictions on contact with TMRI employees set forth in Section 3 of this letter are designed, in part, to reduce the risk of any conduct that could be characterized as retaliatory.
9. Investigation Process and Expected Timeline
For your information, we provide the following overview of the investigation process and anticipated timeline:
The investigation will include, at a minimum, the following activities:
(a) Interviews of the individuals who filed the formal grievances (the "complainants");
(b) One or more interviews of you, as the respondent named in the grievances;
(c) Interviews of other witnesses identified by the investigation team as having potentially relevant information, which may include current and former TMRI employees, supervisors, administrative staff, and other individuals;
(d) Collection and review of relevant documents and ESI, including but not limited to personnel files, email correspondence, safety-incident reports, laboratory notebooks, scheduling records, performance evaluations, training records, meeting minutes, and other materials; and
(e) Such additional investigative steps as the investigation team determines, in its professional judgment, to be necessary or appropriate.
While the investigation team is committed to completing the investigation as expeditiously as reasonably practicable, the scope and complexity of the matters under investigation, the number of witnesses to be interviewed, and the volume of documents to be reviewed make it impossible to guarantee a specific completion date at this time. We will endeavor to keep you reasonably informed of significant developments in the timeline through your personal counsel, if retained, or directly if you are not represented.
Upon conclusion of the investigation, C&H will prepare a written report setting forth its findings of fact and, as appropriate, its recommendations. The report will be prepared for and delivered to TMRI. Consistent with standard practice in employer-directed workplace investigations, the final report is the property of TMRI and will not be provided to you. However, TMRI may, in its sole discretion, inform you of the outcome of the investigation and any employment decisions made in connection therewith.
10. Point of Contact
The primary point of contact for all matters relating to this investigation is:
Nadia Petrov Associate, Labor & Employment Calderwood & Harkness LLP One Federal Place, Suite 3200 Boston, MA 02110 Telephone: (617) 555-0184
Email: npetrov@calderwoodharkness.com
All communications from you, or from your personal legal counsel if retained, regarding the investigation — including questions, scheduling requests, document productions, and any other matters — should be directed to Ms. Petrov. Please do not contact individual complainants, witnesses, TMRI management, or TMRI Human Resources personnel regarding the substance of the investigation; all such communications should be channeled through Ms. Petrov.
We recognize that receiving this letter may be concerning, and we want to assure you that the investigation will be conducted in a thorough, impartial, and professional manner. We are committed to ensuring that all parties, including you, are treated fairly throughout this process.
We respectfully request that you acknowledge receipt of this letter by signing and returning the enclosed Acknowledgment of Receipt form to Nadia Petrov at the address above, or by confirming receipt via email to Ms. Petrov at npetrov@calderwoodharkness.com. Your prompt acknowledgment is appreciated.
We thank you in advance for your anticipated cooperation with this investigation. Should you have any questions regarding the contents of this letter or the investigation process, please do not hesitate to contact Ms. Petrov at the telephone number or email address listed above.
Sincerely,
CALDERWOOD & HARKNESS LLP
By: ________
Renata Vasquez Partner, Labor & Employment One Federal Place, Suite 3200 Boston, MA 02110
cc: Elena Graff, General Counsel, Thornwick Medical Research Institute Grace Okenwa, Vice President, Human Resources, Thornwick Medical Research Institute
Encl.: Acknowledgment of Receipt Form
ACKNOWLEDGMENT OF RECEIPT
Investigation Notification Letter — September 16, 2024 C&H Matter No. 1029-00002
I, Dr. Marcus Ellender, hereby acknowledge receipt of the Investigation Notification Letter dated September 16, 2024, from Calderwood & Harkness LLP, regarding the independent investigation into formal grievances filed in connection with the Biomedical Engineering Laboratories of Thornwick Medical Research Institute.
By signing below, I confirm that I have read and understand the contents of the letter, including the following:
1. I am required to cooperate fully with the investigation, including participating in interviews, responding to information requests, and otherwise conducting myself in a manner consistent with the obligations described in the letter.
2. I am required to preserve all documents and electronically stored information that may be relevant to the investigation, as described in the letter and in the litigation-hold memorandum issued by TMRI General Counsel.
3. I am required to maintain the confidentiality of the investigation as described in the letter.
4. I am required to comply with the terms and conditions of paid administrative leave as described in the letter.
5. Calderwood & Harkness LLP represents Thornwick Medical Research Institute and does not represent me personally. I understand that I have the right to retain personal legal counsel of my own choosing and at my own expense.
Receipt of this letter and execution of this acknowledgment does not constitute an admission of any allegation described in the Investigation Notification Letter.
________________________________________
Dr. Marcus Ellender
Date: ________
Please return the signed original to: Nadia Petrov, Associate Calderwood & Harkness LLP One Federal Place, Suite 3200 Boston, MA 02110 npetrov@calderwoodharkness.com