Washington, D.C – The EEOC has found that the Food and Drug Administration, US Department of Health and Human Services, retaliated and discriminated against two scientists when it improperly terminated them in 1994. The Commission has ordered the FDA to reinstate the two scientists who were wrongfully terminated.

In 1994, the FDA chose not to convert an employee and scientist from his Senior Staff Fellowship to a permanent position, leaving him without a job. The employee filed a discrimination complaint against the Agency. The Japanese-American claimed that he was discriminated against because of his Asian background and his accent. A co-worker (also a scientist) was also a Senior Staff Fellow at the FDA and openly supported the employee's charges of discrimination. Soon thereafter, the co-worker's Fellowship was also terminated.

The EEOC's initial decision focused on the facts "lurking in the background" – that the manager was impatient and rude with Asians, snickered or laughed at Asians, complained about not understanding their English, and would not say hello or good morning to Asians. As a result, the EEOC found that the manager "had a bias which manifested itself through her hostility to Asian scientists and personnel who spoke with any noticeable Asian accent." This week, the EEOC affirmed that decision, dismissing the FDA's appeal attempts.

In trying to justify the scientists' non-conversion to permanent positions, Dr. Kathryn Zoon, Center Director, Center for Biological Evaluation and Research, and Dr. Terry Gerrard, then Acting Director of the Division of Cytokine Biology, criticized the employee's scientific and regulatory work, including his warnings about the potential dangers of mad cow disease in the U.S.. The EEOC found, however, that Dr. Zoon's and Dr. Gerrard's contentions were false, were designed to hide discrimination and were not supported by any written record. In fact, a team of established scientists found the employee to be a well-trained scientist who established a strong research program and fulfilled all his regulatory work at the FDA. Dr. Zoon remains in an SES managerial position at the FDA as Director of the Center responsible for the government’s decisions on biological therapeutics decisions including smallpox and anthrax vaccine lot release. In its decision, the EEOC ordered Dr. Zoon to take training "to eliminat[e] discrimination in the workplace".

The FDA retaliated against the co-worker because she supported the employee's discrimination allegations. The EEOC discredited the FDA's charges that the co-worker was difficult to work with. The EEOC found retaliation in the FDA's lack of documentation to support its charges. The EEOC also discredited the Agency's charges due to the timing of the co-worker's removal, only twelve days from the employee's. The Commission also noted that the scientists were known to have a close relationship, even if their marriage was not well publicized at work.

Kristin Alden of Passman & Kaplan, PC, in Washington, D.C. represented the scientists throughout the proceedings.

Ms. Alden stated that she is "thrilled with the EEOC's decision. It's a real victory for two accomplished scientists who never should have been fired. Their reputations were severely damaged, and now they can start to recover from this horrible ordeal." Commenting specifically on the EEOC's decision, Alden said, "the Commission has recognized and addressed the continuing problem of insidious discrimination and retaliation that still exists, even in the federal government."

The EEOC's Executive Secretariat issued both of its decisions after review by the Commissioners, signifying the weight and import of the case. Most EEOC federal sector appeals are issued by the Office of Federal Operations.

The EEOC ordered the FDA to reinstate the employee to a permanent position. The EEOC found the premature termination of the co-worker's Senior Staff Fellowship wrongful. Both scientists are entitled to back pay and benefits, and the remainder of the case was remanded for a decision on compensatory damages.