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Judge Dismisses Wrongful-Termination Suit Against Affy, Finds No 'Threats,' 'Coersion'

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A US District Court Judge late last month dismissed a wrongful-termination suit brought against Affymetrix by a former employee, agreeing with the company that it did not violate the former staffer’s civil rights when he was fired in May 2005.
 
Judge Reginald Lindsay of the US District Court for the District of Massachusetts dismissed the case Nov. 20, 20 months after it was filed. Affy filed a motion in June 2006 seeking either a summary judgment or a dismissal.
 
The former employee, Eric Lawson, had been seeking damages “in excess of $100,000,” According to court documents, the ruling removes one suit off Affy’s plate, which still includes a recently consolidated shareholder suit and ongoing patent-infringement disputes with Illumina and Enzo Biochem (see BAN 9/5/2006, BAN 7/25/2006). 
 
It is unclear whether Lawson will continue to pursue his case against Affy. Calls to an attorney representing Lawson were not returned by press time.
 
According to court filings filed by Lawson, he was employed at Genetic MicroSystems, a Woburn, Mass.-based array scanner company headed by Jean “Coco” Montague, until it was acquired by Affymetrix in 1999. Lawson then joined Affy as an “at-will” employee developing instrumentation, meaning that Affy was free to fire him "for good cause, or bad cause, or no cause at all," and the employee is equally free to quit, strike, or otherwise cease work, according to an employment law text.
 
Lawson claimed he registered the product with the US Food and Drug Administration’s Centers for Devices and Radiological Health as Affy began to roll out its GeneChip Scanner 3000 in 2002. Lawson also claimed he subsequently attained ISO certification for the product and also registered it for a CE Mark in Europe.
 
In his suit Lawson asserted that this activity ceased when management informed him that he should sever all contact with the FDA as Affy positioned its GCS 3000Dx model for 510(k) clearance in 2004. However, Lawson claimed that because his name had been on the initial filings he was consequently contacted by the FDA during a 510(k) audit in March 2005.
 
Prior to the arrival of the auditor, Lawson alleged in the case, he was given a first and final warning to not discuss the 510(k) clearance with the FDA or management. According to the suit, he met briefly with the FDA official in the parking lot outside the firm’s Bedford, Mass., facility on the day of the audit.
 
In April of 2005, Lawson was placed on administrative leave, and in May 2005 Affy terminated his contract.
 

The former employee accused Affy of attempting to curtail his right of free speech, his right to freedom from slanderous statements, and his right to contract with the company, under the Massachusetts Civil Rights Act.

In his suit, filed in April 2005, Lawson argued that by giving him a “first and final warning” and terminating him for his unauthorized dialog with the FDA, Affymetrix had attempted to curtail his right of free speech, his right to freedom from slanderous statements, and his right to contract with the company, under the Massachusetts Civil Rights Act.
 
In its motion to dismiss, filed in June 2006, Affy argued that Lawson’s case did not meet the requirements of the MCRA, which states that interference with a citizen’s civil rights are carried out by “threats, intimidation or coercion."
 
Lawson “has alleged no conduct by Affymetrix that could constitute the requisite ’threats, intimidation or coercion’ under the MCRA, and he has failed to allege a violation of a secured right cognizable under the MCRA,” Affy’s representatives wrote.
 
Moreover, Affy argued that violation of the MCRA required “a physical confrontation accompanied by a threat of harm, or economic coercion involving the loss of a contract right.” Because Lawson alleged no physical threat and he was not a contract employee, Affy successfully argued it did not violate his civil rights in the Commonwealth of Massachusetts.

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