Former researcher suing the College, alleging wrongful firing

by Rachel Favors | 10/22/15 7:20pm

A former researcher at the Center for Health Care Delivery Science is suing a senior member of the center’s staff and the College for a variety of alleged offenses stemming from her accusation of plagiarism against her employer.

Manana Tsulukidze brought a lawsuit against senior scientist Glyn Elwyn and the College, alleging that Elwyn misrepresented her concept for a study as his own, then fired her in retaliation when she reported his actions. The College is also listed as a defendant in the suit as Tsulukidze believes that the College denied her the right to appeal her termination and failed to fully investigate her misconduct claims.

Five counts were listed in the suit. Tsulukidze alleged wrongful termination, violation of New Hampshire’s Whistleblowers’ Protection Act, intentional inflection of emotional distress, tortious interference with economic advantage and respondeat superior, a legal doctrine stating that the employer — the College — can be held responsible for the actions of an employee — Elwyn.

College spokesperson Diana Lawrence wrote in an email that Elwyn and College associate general counsel Kevin O’Leary had declined to comment.

The College does not comment on pending litigation, but believes Tsulukidze’s claims are meritless, Lawrence wrote in an email.

Tsulukidze filed a complaint in Grafton Superior Court on Jan. 30, according to court records. She requested a jury trial.

The court records were provided to The Dartmouth by Tsulukidze’s attorney, Kirk Simoneau.

Tsulukidze — who is a national of the Republic of Georgia — claims that as a direct result of her termination and Elwyn’s refusal to provide a reference, she has been unable to secure other academic work and will be required to leave the United States.

“This actually isn’t an intellectual property case in the way we usually use that term of art,” Simoneau said. “This is really more of a whistleblower case. This is the wronged employee, the employee who cries foul and then gets fired for crying foul.”

The case deals primarily with intellectual property law and wrongful employment law, Simoneau said.

Simoneau added that these intellectual property and wrongful termination cases are not common. Having filed the suit, however, many people, including Dartmouth professors, have recently contacted Simoneau to say that the theft of ideas is an extremely common behavior, he said.

Tsulukidze came to the United States on a work visa from Georgia. During her 2012-2014 tenure at the College, Tsulukidze worked as a post-baccalaureate fellow directly under Elwyn at the Center for Health Care Delivery Science, according to the documents.

In 2013, Tsulukidze developed a new study involving medical patients who secretly record interactions with their physicians, according to court documents. Tsulukidze alleges that Elwyn threatened to withhold a reference that was crucial to her securing another job if she did not cede authorship of the study to him. The defense denied the allegation in its response to the complaint, but acknowledged that the study and its authorship became a source of contention between Tsulukidze and Elwyn.

Tsulukidze met with the vice provost for research Martin Wybourne to resolve the authorship dispute and, ultimately, Tsulukidze was approved as “study lead” in Feb. 2014, according to court records.

Conflict between Elwyn and Tsulukidze erupted again when Elwyn published an article in the BMJ — formerly known as the British Medical Journal — in March 2014, where Tsulukidze alleges that Elwyn intentionally presented her ideas as his own, without citing her work, while also promoting an upcoming conference that he was co-directing.

The defense maintains that Elwyn published an opinion piece, not an article, in BMJ.

Subsequently in May 2014 and July 2014, Tsulukidze alleges that she filed a formal letter of grievance and made complaints to Wybourne about research misconduct by Elwyn.

Tsulukidze’s fellowship was only renewed for a few months by Elwyn before he terminated Tsulukidze. On Sept. 22, 2014, the College’s human resources department affirmed Tsulukizde’s termination, according to court documents.

Tsulukizde alleges that all of her requests that “the College further investigate or institute an appeal panel were rejected,” despite numerous provisions in College policies for appeals of termination. The College and Elwyn deny this allegation, according to the defense’s answer to Tsulukidze’s complaint.

Dartmouth went against its established standards set out in the College’s faculty handbook when it took a disposition on the case in favor of Elwyn without going through its traditional procedures, government professor emeritus Roger Masters said.

“I am, however, familiar with the rules of Dartmouth College with regard to a complaint that has been made by a member of the faculty, staff or student against a faculty member of the College,” Masters said. “Dartmouth College decidedly did not follow the rules set forth in the faculty handbook in handling this case.”

Masters specifically noted rules on pages 28 through 30 and 83 of the faculty handbook as relevant in Tsulukidze’s case.

On April 1, the defense made a motion to dismiss Tsulukidze’s claims that the College is in violation of the Whistleblowers’ Protection Act in its treatment of her.

The defense’s motion to dismiss the claim alleged that there is a “complete lack” of laws forbidding plagiarism and that the plaintiff could therefore not have thought that plagiarism was illegal.

The plaintiff’s objection to the defense’s motion to dismiss cites Dartmouth’s own academic policies concerning plagiarism. The objection says that because Dartmouth defines plagiarism as “intellectual theft,” it was reasonable for Tsulukidze to think that Elwyn’s behavior was illegal.

Judge Peter Borstein denied the College’s motion to dismiss as the court concluded that the complaint of activity does not have to be illegal as long as the plaintiff believed that the activity was in violation of a law, according to court records.

For plaintiffs to win cases in terms of the violation of the Whistleblowers’ Protection Act, the plaintiff must establish that he or she reported on a matter of substance to a person or persons in a position to address the issue and was shortly thereafter terminated or retaliated against, University of California at Berkeley School of Law professor David Rosenfeld said.

Because different states have different laws governing what constitutes whistleblowing, Rosenfeld said that he could not completely comment on Tsulukidze’s case as it depends on New Hampshire law, with which he is not familiar.

In some states, complaints have to be made in writing and orally in others, or in certain states the plaintiff must raise the issue internally or to an outside agency in other states, Rosenfeld said.

If the suit is decided in Tsulukidze’s favor, the court could order the defense to pay double the plaintiff’s damages, order the College to hire her back and order the College to pay Tsulukidze’s legal costs, Simoneau said.

According to Simoneau, the case could potentially go to trial in April 2016.

Advertise your student group in The Dartmouth for free!