Opinion
No. 03 Civ. 7735 (LTS)(KNF).
April 18, 2005
MEMORANDUM and ORDER
In this action brought pursuant to Title VII of the Civil Rights Act of 1964, as amended, and the Age Discrimination in Employment Act of 1967, as amended, the plaintiff contends that his previous employer harassed him and retaliated against him for raising safety concerns he had and for filing charges of discrimination premised upon his contention that he was not promoted and did not receive transfers to different job assignments because he is Hispanic. The plaintiff has made an application for the court to appoint counsel to represent him in this action. That request is addressed below.
After commencing the instant action pro se, the plaintiff was able to hire an attorney to represent him. In March 2005, that attorney made an application under the applicable Local Civil Rule of this court that he be relieved of the obligation of continuing to represent the plaintiff. That application was granted. The plaintiff has advised the Court that he has not been able to secure the services of new counsel and that this has prompted him to request that the Court appoint counsel to represent him on a pro bono basis.
Unlike criminal defendants, indigents filing civil actions have no constitutional right to counsel. However, 28 U.S.C. § 1915(e)(1) provides that the Court may request an attorney to represent any person unable to afford counsel. Plaintiff made an application to proceed in forma pauperis, which was granted. Therefore, he is within the class to whom 28 U.S.C. § 1915(e)(1) speaks.
"In deciding whether to appoint counsel, [a] district [court] should first determine whether the indigent's position seems likely to be of substance." Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986), cert. denied, 502 U.S. 986, 112 S. Ct. 596 (1991). This means that it appears to the court, "from the face of the pleadings," Stewart v. McMickens, 677 F. Supp. 226, 228 (S.D.N.Y. 1988), that the claim(s) asserted by the plaintiff "may have merit," Vargas v. City of New York, No. 97 Civ. 8426, 1999 WL 486926, at *2 (S.D.N.Y. July 9, 1999), or that the plaintiff "appears to have some chance of success. . . ."Hodge, 802 F.2d at 60-61.
Where a plaintiff satisfies the threshold requirement of demonstrating that the plaintiff's position is likely to be of substance, the court should then consider: (1) the indigent's ability to investigate the crucial facts; (2) whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact-finder; (3) the indigent's ability to present the case; (4) the complexity of the legal issues; and (5) any special reason in that case why appointment of counsel would be more likely to lead to a just determination.Hodge, 802 F.2d at 62.
In the case at bar, the plaintiff alleges that rights secured to him by Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 were violated by the defendant. With respect to the plaintiff's assertion of a claim under the Age Discrimination in Employment Act of 1967, the Court notes that at the time the plaintiff commenced the instant action he had not yet reached an age that would place him under the protection of that statute. Therefore, the Court finds that the claim made by the plaintiff under that statute is not likely to be of substance.
Looking solely to the face of the pleadings, it appears that the plaintiff's remaining claim made under Title VII of the Civil Rights Act of 1964, may have merit in that the plaintiff alleges that his ability to advance in his career and to obtain assignment transfers, while employed by the defendant, was hampered because he is Hispanic and spoke out against safety hazards and discriminatory conduct of the defendant.
The Court has considered the various factors noted in Hodge because the plaintiff has satisfied the threshold requirement of demonstrating that his Title VII claim may have merit. Based upon previous interactions with the plaintiff, the Court is aware that he is fully familiar with the crucial facts of his case. Therefore, investigating those facts will not, necessarily, require the assistance of counsel.
It is likely that issues of credibility will be hotly contested at the trial of the action. Therefore, cross-examination will likely be a major source of proof presented to the finder of fact. The record before the Court does not indicate that the plaintiff is skilled in the art of cross-examination. This fact militates in favor of appointing counsel to assist the plaintiff. Although it does not appear from the record that the plaintiff has any particular skill in the art of cross-examination, his intimate knowledge of the facts and circumstances that prompted him to initiate this action will facilitate his ability to present his case to a factfinder.
As noted above, this action involves allegations of unlawful discrimination and retaliation. Such actions present complex legal issues involving shifting burdens of persuasion which will necessarily have to be addressed at a trial. The record before the Court does not indicate that the plaintiff possesses any particular knowledge or skill that would enable him to analyze these issues and be prepared to meet the burdens placed upon a plaintiff in an action based upon allegations of unlawful discrimination and retaliation.
Having considered all of the factors outlined in Hodge, supra, the Court finds that appointment of counsel, in the circumstances of this case, would be reasonable and appropriate. Such an appointment would, in the Court's estimation, be more likely to lead to a just determination of the discrimination and retaliation claims the plaintiff has made.
Accordingly, the plaintiff's application, that the Court appoint counsel to represent him, is granted. The Pro Se Office for this judicial district is directed to request Pro Bono counsel for the plaintiff in accordance with the Pro Bono Panel's procedures.
SO ORDERED: