Anthropology professor threatens lawsuit against reporter for reporting the truth about her bullying and unethical conduct [Updated Nov 4, 2019: No lawsuit?]

Sharon Gursky

I have received the following letter from Texas A&M anthropologist Sharon Gursky's attorney, concerning the allegations contained in a recent blog post in which she was included. I stand by my reporting, which is based on multiple witnesses and ample documentation. I have included Exhibit 1, the settlement letter they want me to sign; the other exhibits, which I have not included here, consist of the blog posts, Facebook posts, and Tweets regarding the allegations.

The university "investigation" referred to in the letter was another in a series of whitewashes with which the TAMU administration dispensed of a number of complaints from students, and has no more validity than any of the others. What Gursky may not realize, but her lawyer certainly will, is that a lawsuit is a two-sided battle in which I would have the right to engage in legal discovery. That means that I would be able to subpoena all documents related to this matter, including ones I may not currently have possession of; and I would be able to subpoena witnesses for depositions, including other faculty members, administrators, and everyone at TAMU or elsewhere with knowledge of the facts. (Just by the way, I would conduct legal discovery of the entire situation in the department, as described in the original blog post, to help establish in my defense that the allegations against Gursky arose in the course of a legitimate journalistic investigation into a pattern and practice of abuse across the anthropology department.)

The other thing that Gursky's attorney might tell her is that, as a freelance writer, I would be free to publicize every detail of any lawsuit that she might file, including the additional information that would result from legal discovery. That's because I would not employ any attorney who counseled me to be quiet, as is the case in most lawsuits that involve major media outlets with their own attorneys (I explain the background to my decision to proceed in this way in a recent piece in the Columbia Journalism Review.)

The end result would be that the well founded allegations against Gursky would receive many times more attention than they are generating now, before a much broader audience.

It's bad enough that Gursky and other anthropology faculty at the university have bullied and harassed students in the department, but even worse that they continue to try to intimidate those students and the reporter to whom they have turned as a last resort. In fact, this threatened lawsuit is much more than a futile attempt to silence a #MeTooSTEM reporter; it's a pernicious attempt to intimidate the current and former students who were caused to suffer from Gursky's bullying and unethical behavior, and who are suffering still. That cannot be allowed to stand.

Added note, Oct 15: In his threatening letter to me, Gursky's attorney states, in reference to my sources, that "we are well aware of who they are..."  This is unlikely to be the case, given how many sources there are for my statements about Gursky, but including this particular phrase seems to be an attempt to intimidate both them and me, and a prelude to possible retaliation. I have thus reported this threat of a lawsuit to TAMU's Department of Civil Rights and Equity Investigations and asked them to begin an inquiry. As is the ethical obligation of all reporters, I will under absolutely no circumstances reveal the identity of my sources without their express permission.

Update: It's been brought to my attention that Daniel R. Warner, the attorney hired by Sharon Gursky to threaten me and thus also threaten the students who blew the whistle on her, was put on probation last year by the Arizona bar for multiple counts of fraud.


                                                                       * * *

Re: Immediate Action Required – Removal of Defamatory Posts; Cease and Desist

Defamation of Sharon Gursky

Mr. Balter:

Please be advised that we represent Sharon Gursky, PhD (“Sharon”) in trying to

resolve the above-referenced matter before it is escalated into litigation. This letter shall

serve as (1) a demand to cease and desist publishing any further information concerning

our client; (2) a demand for removal of all defamatory statements that you published about

our client on various websites; and (3) your notice that a lawsuit will be filed against you

if you fail to comply these demands.

I have reviewed your blog, Facebook.com and Twitter.com posts pertaining to our

client, and it is evident that you have published several false and defamatory statements.

While I understand you claim to be a “journalist,” it is apparent that your “blogging” is a

hobby, secondary to your career in education. In any event, however, our client is not

interested in “your sources”; we are well aware of who they are and take no issue with

them seeking to have their concerns addressed through the proper channels. It is your

reckless and malicious conduct that is the problem.1

In your blog post, located at https://michael-balter.blogspot.com/2019/09/texas-amanthropology-

rife-with sexual.

html?fbclid=IwAR1CMSRwNlGMqbHGtjHJBZ9ZUxKvuQc--

1 See McGill v. Parker, 179 A.D.2d 98, 108, 582 N.Y.S.2d 91, 97 (1st Dep't 1992) (noting that

while “a standard which requires a showing that the publisher of defamatory material ‘acted in a

grossly irresponsible manner ...’ is particularly suited to a media defendant,” there “is no reason ...

why the Constitution should be construed to provide greater protection to

the media in defamation suits than to others exercising their freedom of speech”).

Letter to Michael Balter

10/14/2019

Page 2 of 4

wbsSrrOGOUOlpFYjraleJtw0Qc, you published the following false and defamatory

information about our client:

In two cases for which I have been given documented evidence, Gursky

either misappropriated or stole outright the research ideas of her students for

her own use. In one case, sources and documents attest, she used the

dissertation project of one of her students to get grant funding from the

university. In another, she used the research of a student for a poster session

at a meeting without permission.

Gursky is also a celebrated bully in the department. Her abuses include

publicly mocking a student with an eating disorder, publicly discussing the

academic struggles of a student in front of others (a possible violation of

federal privacy laws), publicly shouting at and attempting to humiliate

students, and forcing students to take her classes unnecessarily so they would

have sufficient enrollment. Once again, department leaders were fully aware

of this behavior but have done nothing effective about it.

It speaks volumes that you published these statements but (1) failed to contact our client to

get her side of the story, (2) did not attempt to obtain any information from the university

regarding their investigation process, (3) did not inquire whether any of the complaints

regarding our client’s alleged conduct were dismissed, and (4) failed to interview any thirdparty

witnesses. It is apparent that you failed to conduct any type of objective investigation

regarding our client’s alleged conduct, and your clear lack of objectively is the exact

opposite of true journalism. You published the statements with a reckless disregard as to

whether the statements were false and damaging to our client’s reputation, which has taken

her decades to build.

Had you conducted basic due diligence, you would have learned that (1) all

complaints pertaining to our client were investigated and found to be unsubstantiated; (2)

various third-party witnesses were interviewed during the investigation; (3) our client

asked the student to make one figure for the poster, our client provided her data and

analyses to the student, and the student was given credit for his work as his name was

published in the abstract; (4) our client was able to show that on the AUP animal use

protocol application, which was submitted online one month prior to the accusations, how

this student’s assigned role was denoted; (5) regarding the Leakey grant application idea,

our client was able to produce a final report to a grant agency showing that her next step

would be to evaluate the function of the alarm calls, and this report was submitted before

our client worked with this student in this regard; and (6) regarding dissertation idea, in

2012, our client published a paper on the ultrasonic vocalizations and hearing using the

method ABR auditory brainstem response that the student was going to use, but he never

got to stage of collecting data, writing a grant or writing a dissertation.

Letter to Michael Balter

10/14/2019

Page 3 of 4

Your statements are clearly false and defamatory. “[E]ach person who repeats the

defamatory statement is responsible for the resulting damages.” Geraci v. Probst, 15

N.Y.3d 336, 342, 938 N.E.2d 917, 921 (2010). Defamation is the injury to one's reputation,

either by written expression (libel) or oral expression (slander). Morrison v. National

Broadcasting Co., 19 N.Y.2d 453, 280 N.Y.S.2d 641, 227 N.E.2d 572 (1967). The

elements of libel are: [1] a false and defamatory statement of fact; [2] regarding the

plaintiff; [3] which are published to a third party and which [4] result in injury to plaintiff.

Idema v. Wager, 120 F.Supp.2d 361 (S.D.N.Y.2000); Ives v. Guilford Mills, 3 F.Supp.2d

191 (N.D.N.Y.1998). Certain statements are considered libelous per se. They are limited

to four categories of statements that: [1] charge plaintiff with a serious crime; [2] tend to

injure plaintiff in its business, trade or profession; [3] plaintiff has some loathsome disease;

or [4] impute unchastity. Liberman v. Gelstein, 80 N.Y.2d 429, 590 N.Y.S.2d 857, 605

N.E.2d 344 (1992); Harris v. Hirsh, 228 A.D.2d 206, 643 N.Y.S.2d 556 (1st dept.1996).

Where statements are libelous per se, the law presumes that damages will result and they

need not be separately proved. Id. at 435, 590 N.Y.S.2d 857, 605 N.E.2d 344. The amount

of such damages “is peculiarly within the jury's province.” Calhoun v. Cooper, 206 A.D.2d

497, 497, 614 N.Y.S.2d 762 (1994).

In assessing the amount of damages to award for defamation, a jury is not limited

to compensating the plaintiff for “economic” losses, such as demonstrable lost profits. See

Gertz v. Robert Welch, Inc., 418 U.S. 323, 350, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).

Rather, a plaintiff may suffer “non-economic” injuries as well. Among these is the loss of

reputation, which includes the loss of professional status and the ability to earn wages, as

well as any humiliation or mental suffering caused by the defamation. See Mattox v. News

Syndicate Co., 176 F.2d 897, 901–02 (2d Cir.1949) (“[I]t is universally agreed that the

damages recoverable in libel are the plaintiff's loss of reputation in the minds of those who

know him or know about him, together with this mental suffering as a result of the libel.”);

see also Lundell Mfg. Co. v. Am. Broad. Co., 98 F.3d 351, 364–65 (8th Cir.1996)

(upholding an award of $900,000 for damage to reputation—in addition to a separate award

of $158,000 for past and future lost profits—where defendant's act of defamation impaired

plaintiff's ability to sell a recycling machine); Resolution Trust Corp. v. Miramon, 935

F.Supp. 838, 844 (E.D.La.1996) (“Damages for loss of reputation seek to make one whole

for loss of the ability to earn wages, borrow money, and to enjoy life as fully as before the

injury.”); Prozeralik v. Capital Cities Commc'ns, Inc., 222 A.D.2d 1020, 1021, 635

N.Y.S.2d 913, 914 (4th Dep't 1995) (upholding an award of $6,000,000 for injury to

plaintiff's reputation and $3,500,000 for mental suffering—in addition to a separate award

of $1,500,000 for direct financial loss—where defendant's act of defamation injured the

reputation of prominent local restaurateur), lv. denied, 88 N.Y.2d 812, 672 N.E.2d 605,

649 N.Y.S.2d 379 (1996) (Table). “The same rules, of course, apply to a corporation, and

where its standing, integrity, or credit are assailed, damages are presumed.” Edwards X

Letter

to Michael Balter

10/14/2019

Page 4 of 4

ray Co. v. Ritter Dental Mfg. Co., 124 Misc. 898, 899–900, 210 N.Y.S. 299, 301–02 (Sup.

Ct. 1925).

Accordingly, for publishing the statements, you may be held liable for presumed

damages, as well as punitive damages, which may be substantial. Nevertheless, our client

is willing to give you one last chance to resolve this matter without legal action. This is the

last and final settlement offer that will be extended to you. Notably, the terms of the

settlement are extremely generous under the circumstances; you are not being required to

pay any money, including attorneys’ fees. Instead, our client is willing to release you from

all claims on the following conditions:

1. You will remove all information you published or caused to be published on the

Internet about our client (including blog, as well as Facebook.com, Twitter.com,

and any other platform);

2. You will refrain from publishing or causing the publication of any information

about our client on the Internet; and

3. You will refrain from “investigating” our client.

If, within 10 days from the date of this letter, I do not receive a signed copy of the

Settlement Agreement (which has been attached as Exhibit 1 hereto), we will presume that

you have no desire to settle this matter short of litigation and will proceed accordingly.

Furthermore, you are hereby notified that, if this matter is resolved via litigation, you may

be liable for our clients’ costs and attorneys’ fees, and that this letter may be provided to

the judge and/or jury for that purpose, in addition to demonstrate your malicious intent. I

look forward to hearing from you within 10 days.

Sincerely,

Daniel R. Warner, Esq.

Enclosures as stated.

EXHIBIT 1

________/_______

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CONFIDENTIAL SETTLEMENT AGREEMENT AND RELEASE

This Agreement is entered into this ____ day of October, 2019 (the “Effective Date”),

between Sharon Gursky (“Sharon”); and Michael Balter (“Balter”). Sharon and/or Balter may be

hereinafter referred to individually as “Party” and/or collectively as “Parties.”

WHEREAS:

A. Balter published or caused to be published certain defamatory statements about Sharon,

some of which have been attached as Exhibit A hereto (the “Posts”).

B. Sharon contemplated filing a lawsuit against Balter for defamation; however, Sharon

proposed this Settlement Agreement prior to filing suit and Balter agreed.

C. The Parties now wish to settle any and all disputes short of litigation.

THEREFORE, in consideration of the promises, covenants and warranties set forth below

and the mutual agreement of the Parties and other good and valuable consideration, the receipt and

sufficiency of which are acknowledged, the Parties agree as follows:

1. Essential Representations by Balter.

1.1 Balter represents and warrants to Sharon as follows:

(a) As of the Effective Date, Balter has removed the Posts, as well as any and all

information Balter posted, or caused to be posted, on the Internet about Sharon.

(b) As of the Effective Date, Balter, directly or indirectly, shall not publish or cause to

be published any information about any Sharon on the Internet.

(c) As of the Effective Date, Balter shall not (a) publicly publish, or cause or encourage

the public publication of, any negative, defamatory, damaging or disparaging statement

about any Sharon or any statement that would cause Sharon embarrassment or humiliation

or otherwise cause or contribute to such persons or entities being held in disrepute by the

public1; or (b) publish, cause to be published or encourage the publication, on the Internet

of any negative, defamatory, damaging or disparaging statement concerning Sharon.

1 This provision does not, in any way, restrict or impede the applicable Party from enforcing this Agreement

or exercising protected rights to the extent that such rights cannot legally be waived by agreement or from

complying with any applicable law or regulation or a valid order of a court of competent jurisdiction or an

authorized government agency, provided that such compliance does not exceed that required by the law,

regulation or order. To the extent a court/tribunal of competent jurisdiction finds that the Party is precluded

as a matter of law from contractually waiving any such rights under the certain facts and circumstances

before the court, this provision shall be construed as being inapplicable and thus should not be stricken as

unenforceable.

________/_______

Initials

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(d) Other than the Posts, as of the Effective Date, Balter has not published or caused to

be published any information on the Internet about Sharon.

(e) Balter will immediately cease and permanently refrain from investigating Sharon.

(f) Balter acknowledges and agrees that any breach of any of the representations above

will result in irreparable injury and that the remedies at law will be inadequate, and that in

addition to any other remedy Sharon may have (including but not limited to those set out

herein), Sharon shall be entitled to the specific performance of this Agreement, as well as

both temporary and permanent injunctive relief (notwithstanding any limitations in law or

equity, such as being required to post a bond).

(g) Balter acknowledges and agrees that damages flowing from any breach of this

Agreement (including any breach of any of the representations above and/or the

confidentiality provisions below) are not readily susceptible to being measured in monetary

terms; therefore, in the event of breach of any provision of this Agreement, Sharon will be

entitled to collect liquidated damages from Balter in the amount of $25,000 USD per

breach.

(h) The Agreement shall in all respects be governed by and construed according to the

laws of the state of Arizona, without regard to the conflicts of laws principles thereof. Any

suit or other proceeding arising out of or relating to this Agreement shall be instituted and

maintained in Maricopa County, Arizona. The Parties expressly waive any objections to

such jurisdiction and venue and irrevocably consent and submit to the personal and subject

matter jurisdiction of such courts in any action or proceeding. However, this Agreement

and/or any court order or judgment arising out of or related hereto shall be enforceable in

every state and worldwide.

(collectively, the “Representations”).

1.2 The Parties acknowledge and agree that the Representations are an essential term

of this Agreement, and the Parties would not enter into this Agreement but for the

Representations.

2. Release of All Claims.

Subject to the provisions of the Agreement stating otherwise and except for fulfilling the

obligations created by this Agreement (and contingent upon doing so, as applicable, respectively),

each of the Parties, for themselves, their marital communities, their owners, agents, attorneys,

representatives, officers, employees, successors and assigns, now and forever release, renounce,

and surrender any and all claims (whether known or unknown), claims for damages, actions, causes

of actions, suits, debts, dues, sums of money, accounts, reckonings, bonds, bill, specialties,

covenants, contracts, controversies, agreements, stipulations, promises, variances, trespasses,

damages, judgments, extents, executions, and demands whatsoever (collectively “Claims”),

including but not limited to any in law or in equity, as against each other and any and all

subsidiaries, affiliates, attorneys, employees, officers, directors, stockholders, representatives,

________/_______

Initials

Page 3 of 5

agents, successors and assigns that the Parties ever had, now have, or hereafter may have for any

reason whatsoever, whether relating to disputes referenced above or otherwise. The Parties

acknowledge and agree that this Release set forth hereinabove is a General Release, and that the

Party expressly waives and assumes the risk of any and all claims for damages which exist as of

the Effective Date, but which the Party does not know of or suspect to exist, whether through

ignorance, oversight, error, negligence, or otherwise, and which, if known, would materially affect

the Party’s decision to enter into this Release and Settlement Agreement.

3. Covenant Not to Sue. Each Party represents and warrants that the Party has not filed or

commenced any lawsuits or other legal proceedings against the other Party. Each Party warrants

and represents, unless otherwise provided herein, not to file or commence any lawsuits or legal

proceedings against the other Party based on any claims, allegations, alleged defaults, causes of

action, obligations or responsibilities, existing or alleged prior to the Effective Date, relating to

any matter referenced herein or otherwise related to and/or arising out the relationship between the

Parties.

4. Acknowledgements. Each Party represents, warrants and acknowledges the following:

4.1 The Party has carefully read and understands the effect of this Agreement. Each

Party had the assistance of separate counsel or has had the opportunity to have separate

counsel review, discuss and consider all terms of this Agreement.

4.2 No Party’s signing of this Agreement is based upon their reliance upon any

representation, understanding or agreement not expressly set forth herein.

4.3 The Party is signing this Agreement by their free and voluntary act, without duress,

coercion or undue influence exerted by or on behalf of any of the other Parties or any other

Party.

4.4 The Party is the sole owner of the claims or causes of action being released herein,

and the Party has not conveyed or assigned any interest in any such claims or causes of

action to any person or entity not a Party hereto.

4.5 The Party has full and complete authorization and power to sign this Agreement in

the capacity herein stated. This Agreement is a valid, binding, and enforceable obligation

of the Party and does not violate any law, rule, regulation, contract or agreement otherwise

enforceable by the Party.

4.6 The recitals above are true and correct and are hereby incorporated into this

Agreement as representations and warranties, respectively.

5. Effective Date. The Parties may sign this Agreement at different times for convenience

sake. This release shall not be effective until after all Parties or their lawful agents have signed

this release, after which the effective date shall revert back to the Effective Date that is first set

forth above.

________/_______

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6. Binding Effect. The undersigned represent and warrant that they are authorized to execute

this Agreement for, and to bind, their principals, spouses, and marital communities, as applicable

and that this Agreement and all of its terms and provisions shall be binding upon and inure to the

benefit of the Parties and their heirs, legal representatives, successors, and assigns.

7. Attorneys’ Fees and Legal Expenses. If any proceeding or action shall be brought to

recover any amount under this Agreement, or for or on account of any breach hereof, or to enforce

or interpret any of the terms, covenants, or conditions of this Agreement, the prevailing party shall

be entitled to recover from the other party, as part of the prevailing party's costs, reasonable

attorneys' fees, the amount of which shall be fixed by the court and shall be made a part of any

award or judgment rendered (regardless of whether or not the matter is contested).

8. Construction. The language in all parts of this Agreement will be construed as a whole

according to its fair meaning and not strictly for or against any Party. Any rule of construction to

the effect that ambiguities are to be resolved against the drafting Party shall not apply in the

interpretation of this Agreement or any amendments hereto.

9. Counterparts. The Parties hereto further stipulate and agree that this Agreement may be

executed in any number of counterparts, all the counterparts shall be deemed to constitute one

instrument, and each counterpart shall be deemed an original. Facsimile and pdf signatures shall

serve as originals.

10. Severability. If any provision of this Agreement is held to be invalid or unenforceable, the

remaining provisions shall continue in full force and effect in such jurisdiction to the fullest extent

permitted by law and the invalidity or unenforceability of any provision hereof in any jurisdiction

shall not affect the validity or enforceability of such provision in any other jurisdiction.

11. No Waiver. The waiver by either Party of a breach of any provision of the Agreement shall

not operate or be construed as a waiver of any subsequent breach.

12. Entire Agreement. This Agreement and the attachments hereto, constitute the entire

agreement between the Parties in connection with the subject matter hereof and supersedes all

agreements, proposals, representations and other understandings, oral or written, of the Parties.

13. Confidentiality. The terms of this Agreement are confidential, and no Party will disclose

its terms to any third party without the prior written consent of the other Party, except: (a) as

otherwise agreed to by all Parties in writing, separately or hereunder; (b) as reasonably necessary

to enforce rights under this Agreement; (c) where a disclosure is reasonably required by applicable

accounting or regulatory purposes; (d) under judicial or governmental subpoena, demand or

requirement, provided that the disclosing Party agrees to request provisions of confidentiality; or

(e) as otherwise required by law, provided that prompt, prior notification is provided to the other

Party as soon as practicable so that the other Party has an opportunity to seek protection from such

disclosure.

WHEREFORE, the Parties undersigned agree to the foregoing on the date first set forth

above.

________/_______


Update Nov 4, 2019: It looks as though Gursky is not going to sue me after all. See update at the bottom of this more recent post (a Facebook exchange with Gursky.)