Welcome to the legal blog of Lopez & Wu, PLLC

Through this blog, we hope to provide you with helpful information about developments in law related to employment, civil rights, federal employees, bankruptcy, immigration, and traffic. For more information about our law firm, please visit www.LopezandWu.com.

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Saturday, March 20, 2010

Supreme Court Hears Arguments to Determine Timeliness of Discrimination Claim

In a case that harkened back to recent decisions involving employment discrimination, the Supreme Court heard arguments on February 22, 2010, in the case of Lewis v. City of Chicago, Docket No. 08-974. Because the case involved allegations of the discriminatory impact of a firefighter entrance examination, court observers recalled the facts of last year’s case of Ricci v. DeStefano, 557 U.S. ___ (2009). In Ricci, the Supreme Court held that the city of New Haven’s decision to invalidate firefighter promotion test results violated Title VII of the Civil Rights Act of 1964. However, in spite of factual similarities to Ricci, the Lewis case actually resembled the procedural question addressed by the Supreme Court in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007) and the subsequent legislation reversing the Court—the Lilly Ledbetter Fair Pay Act of 2009.

In July 1995, applicants received results of a firefighter entry-level exam administered by the city of Chicago. African Americans constituted 37% of exam takers. According to exam results, 45% of African American candidates achieved a “Qualified” grade, and 11.5% of African American candidates received a “Well Qualified” grade. On January 26, 1996, Chicago announced its plan to hire applicants who achieved a “Well Qualified” grade, thus potentially excluding 89.5% of African American candidates.
On October 1, 1996, Chicago followed through on its plan and only hired candidates who received a “Well Qualified” grade from the 1995 exam. On March 31, 1997, Arthur Lewis, an applicant who received a “Qualified” grade, filed a charge of discrimination with the EEOC alleging that Chicago discriminated against African Americans on the basis of race when failed to hire them on October 1, 1996.

Under Title VII, depending on the jurisdiction where employees work, claimants must file a charge of discrimination either 180 or 300 days after a discriminatory event. For the Lewis case, claimants needed to follow the 300-day deadline. The U.S. Court of Appeals for the Seventh Circuit agreed with the city of Chicago and deemed January 26, 1996, as the discriminatory event. Therefore, because Mr. Lewis filed an EEOC charge on March 31, 1997, 431 days after January 26, 1996, the Seventh Circuit dismissed the firefighters’ case. Mr. Lewis and the firefighters appealed to the Supreme Court.

The Supreme Court heard the case to resolve which discriminatory event triggered the 300-day deadline to file a charge:

• On January 26, 1996, when Chicago announced its plan to hire only “Well Qualified” candidates (431 days before Mr. Lewis filed his charge)


• On October 1, 1996, when Chicago actually hired the “Well Qualified” candidates (181 days before Mr. Lewis filed his charge).

Based upon reports of the oral argument in Lewis, observers believed that the Supreme Court would support African American firefighters’ argument that a discriminatory event occurred when Chicago actually made hiring decisions on October 1, 1996.

Although the Court will not issue a decision until later this year, employees who believe they have been subjected to discrimination can avoid procedural problems by being aware of the 180- or 300-day deadline to contact the U.S. EEOC or their local Fair Employment Practice office. It is important to hire an attorney with experience in civil rights enforcement as early as possible in order to prepare the necessary materials for submission the EEOC. If you miss the initial filing deadline, regardless of the merits of your case, it may be subject to dismissal.

Friday, March 19, 2010

Court Decision Highlights EEO Filing Deadlines for Federal Employees

Federal employees who believe their agencies have discriminated against them in violation of equal employment opportunity laws must be aware of deadlines establishing when they should contact their agency EEO office and when they should file their formal complaint of discrimination. If an employee fails to meet procedural deadlines, an administrative or federal court judge could dismiss their case, regardless of the facts of the case.

In Hairston v. Tarpella, No. 08-1531 (D.D.C. Oct. 21, 2009), a federal trial court in Washington, D.C., highlighted two deadlines federal employees must obey in order to meet procedural requirements. First, within 45 days of a discriminatory event, federal employees must contact their agency’s EEO office to notify an EEO counselor of discrimination. 29 C.F.R. § 1614.105(a)(1) (2010). Second, when the EEO office has concluded counseling and issued a Notice of Right to File a Formal Complaint, the employee must file the formal complaint within 15 days. 29 C.F.R. § 1614.106(b). In describing the facts surrounding two non-selection complaints by one employee, the court in Hairston held that although employees must abide by regulatory deadlines when filing EEO complaints, in some circumstances, judges may extend deadlines.

The employee in Hairston worked at the Government Printing Office (“GPO”) for 19 years when he applied for another position within the agency in August 2006. On September 6, 2006, the GPO cancelled the vacancy announcement without hiring any applicants. On October 5, 2006, 30 days after the GPO cancelled the vacancy announcement, the employee contacted the GPO’s EEO office to initiate EEO counseling alleging race (African American) discrimination. Because the employee contacted the EEO office within 45 days of the cancelled vacancy announcement, he satisfied the first deadline of the federal EEO complaint process.

When the employee and the GPO failed to resolve the EEO complaint during EEO counseling, the GPO issued the employee a Notice of Right to File a Formal Complaint of discrimination on October 27, 2006. Under the regulations, the employee needed to file his formal complaint 15 days after October 27, 2006. Unfortunately, the employee missed the 15-day deadline and did not file his formal complaint. However, the employee argued that he did not file a formal complaint because he relied upon contradictory information from an EEO counselor. The EEO counselor advised the employee that before he filed his formal complaint, he should gather more evidence of discrimination. Therefore, because the employee followed the EEO counselor’s advice to wait for more evidence, he missed the 15-day deadline to file a formal complaint. The court decided that the employee’s first non-selection complaint could proceed despite missing the 15-day filing deadline because the employee relied upon erroneous oral representations by the EEO office that discouraged him from filing a timely formal complaint.

During the processing of the employee’s first non-selection complaint, the GPO posted a second vacancy announcement on October 13, 2006. For the second vacancy announcement, the GPO notified the employee of his non-selection in January 2007. However, unbeknownst to the employee, the GPO hired someone for the second vacancy announcement on March 19, 2007. Eventually, on June 14, 2007, the employee gained knowledge of the March 19, 2007, selection by the GPO. On June 21, 2007, seven days after discovering that the GPO had hired an allegedly less qualified white applicant for the second announcement, the employee contacted the EEO office.

This time, the GPO argued that the court should dismiss the employee’s second complaint because he failed to contact the EEO office within 45 days of the selectee’s hiring on March 19, 2007. The court disagreed. Under EEO regulations, courts may treat otherwise untimely complaints as timely if the employee “did not know and reasonably should not have known that the discriminatory matter or personnel action occurred.” 29 C.F.R. § 1614.105(a)(2). The court concluded that the 45-day deadline to contact the EEO office started when the employee first gained knowledge of the GPO’s allegedly discriminatory hiring on June 14, 2007, not when the GPO made its selection on March 19, 2007. Thus, because the employee contacted the EEO office seven days after discovering the discriminatory selection, he could proceed with his second non-selection complaint.

Although the court eventually allowed the employee’s complaints to proceed, the Hairston case highlights the importance of knowing EEO deadlines for federal employees. The employee in Hairston cannot be blamed for missing deadlines because the GPO’s EEO office interfered with his first complaint and improperly processed his second complaint. However, in order to more efficiently pursue a discrimination complaint, federal employees should be aware of the 45-day deadline to contact the EEO office following a discriminatory event and the 15-day deadline to file a formal complaint after conclusion of EEO counseling. Once you suspect that you have been discriminated against, you should seek legal advice as soon as possible. When you obtain professional guidance early in the complaint process, your legal representative will be in a better position to develop of legal strategy that maximizes your options.

Thursday, March 18, 2010

Congress Considers Terminating Federal Employees for Failure to Pay Taxes

On March 17, 2010, members of the House Oversight and Government Reform Committee convened a panel to hear testimony from witnesses with opinions concerning legislation proposed by Utah Congressman Jason Chaffetz. The proposed law would require federal agencies to terminate federal employees if they are subject to an IRS tax lien. The proposed law would also prevent individuals with tax liens from applying for federal jobs.

Representative Chaffetz and his supporters alleged that it was “insulting” to taxpayers if the federal government allowed tax delinquent federal workers to keep their jobs. Although Rep. Chaffetz’s proposed law has little chance of passage, four of the five panelists and Democratic members of the committee noted that the legislation was indicative of "ongoing rhetoric that demonizes civil service and civil servants."

Currently, the IRS may remove employees for failure to pay taxes, but Rep. Chaffetz wants to expand such grounds for removal to all federal agencies. Federal employee advocates argued that Rep. Chaffetz’s draconian legislation would circumvent due process afforded all federal employees and treat them harsher than other taxpayers. The due process granted to federal employees allows agencies to make employment decisions on a case-by-case basis, taking into consideration the unique factual circumstances for each employee. Furthermore, allowing employees to continue working would give them the opportunity to pay-off tax debts.

Despite the political rhetoric underlying the congressional hearing, the topics discussed by advocates for federal employees highlight the due process federal staffers should use to vindicate their rights. Depending on the alleged misconduct or impropriety, a federal employee may have the right to an oral and written reply, and the right to appeal a removal or other qualifying disciplinary decision to the Merit Systems Protection Board. For more information on federal employment, please visit www.lopezandwu.com where you will find additional information regarding the rights of federal employees.

Wednesday, March 17, 2010

Supreme Court Revisits Case Requiring Lab Analyst Testimony Regarding Evidence (Updated)

In Virginia, if you’re pulled over and charged with reckless driving by speed, does the Commonwealth need to make the technician responsible for calibrating the radar gun available for cross-examination at your trial?

In June 2009, the Supreme Court ruled that prosecutors may not use crime lab reports in criminal trials against defendants unless the lab analysts who created the reports testify and subject themselves to cross-examination. The case of Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), generated controversy because prosecutors feared that courts and defense attorneys would require forensic analysts to spend a burdensome amount of time testifying at trials rather than performing their job duties. The practical effect of Melendez-Diaz could have impacted the validity of evidence presented at trial, such as chemical analysis for drug cases, blood alcohol analysis for drunk driving cases, and the accuracy of radar guns in reckless driving cases. The majority opinion of the Supreme Court downplayed these fears and instead emphasized that, regardless of administrative burdens, the Constitution’s Confrontation Clause granted criminal defendants the right to cross-examine their accusers, including lab analysts who tested evidence that form the basis of criminal charges. As onerous as the Melendez-Diaz requirement appears, states such as Ohio and Washington, had made lab analysts available for cross-examination at trial, thus complying with Melendez-Diaz.

However, less than six months after the Melendez-Diaz decision, the Supreme Court has decided to take a case that involved a drug prosecution in Virginia. The issue before the Court in Briscoe v. Virginia, Docket No. 07-11191, is whether Virginia Melendez-Diaz provided adequate rights to the defendant under the Confrontation Clause.

Although Briscoe involves a drug case, a decision by the Supreme Court would clarify the Commonwealth’s obligations in traffic cases, including reckless driving by speed. The equipment used by law enforcement officers in the Commonwealth to detect speed require calibration and certification by skilled technicians. Defendants currently have the right to request and cross-examine the technician about the accuracy and validity of a radar gun’s record of your speed. With representation by an experienced attorney, you will be able to navigate the court procedure that allows you to use every defense you may have at trial.

The Supreme Court has scheduled oral argument for Briscoe v. Virginia on January 11, 2010.


On January 25, 2010, the Supreme Court issued a short decision in Briscoe v. Virginia, vacating and remanding the decision of the Virginia Supreme Court. In effect, the Court reaffirmed the Confrontation Clause requirements set forth in Melendez-Diaz v. Massachusetts.

In reaction to Melendez-Diaz, Virginia passed a new law that provided formal procedures for defendants who request presence of lab analysts in court.

Under Virginia’s so-called “Notice and Demand” statute, if the Commonwealth used scientific data to support a criminal prosecution, the Commonwealth attorney will notify the defendant of the Commonwealth's intent to use forensic evidence without having the expert or lab analyst available for testimony. After receiving notice, the defendant can object and require the Commonwealth to make the lab analyst available in court. The court will then require the Commonwealth to produce the lab analyst, but, in turn, allow the Commonwealth time to schedule analyst.