Opinion
No. 04 Civ. 2091 (JSR)(KNF).
January 31, 2005
MEMORANDUM and ORDER
Yvonne Boyce ("Boyce"), a black woman, has made an application that counsel be appointed to represent her in this action that involves allegations that her former employer, the Bank of New York ("BNY"), violated Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 ("ADEA"), when it terminated her employment while offering her white co-workers the opportunity to transfer to other positions at BNY, and by retaining employees younger than Boyce in positions for which Boyce was qualified, that were similar to the position which Boyce held.
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, she 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, inter alia, that she had been employed by BNY for approximately 27 years at the time that her employment relationship with the bank was terminated. She contends that, on the last day that she was employed by the bank, white employees assigned to the project on which she worked were given the opportunity to transfer to other positions within the bank, but she was not afforded a similar opportunity. The plaintiff also contends that tasks that could have been assigned to her to enable her to remain employed were given to white employees. Moreover, the plaintiff alleges that duties that she had previously performed are now being performed by younger employees. Therefore, according to the plaintiff, BNY discriminated against her because of her race and her age when it determined to terminate her employment.
Looking solely to the face of the complaint filed by Boyce, it appears that her claims of discrimination may have merit. Furthermore, given the nature of the allegations made in the plaintiff's complaint, it is very likely that issues of credibility will be at the heart of the litigation. Therefore, it appears to the Court that cross-examination will likely be the major means by which the proof will be presented to the finders of fact. Having someone skilled in the art of cross-examination will be vital to the plaintiff's ability to present her case. The record before the Court does not indicate that Boyce possesses that skill. In addition, since this is an action in which the plaintiff alleges that she was a victim of unlawful discrimination, complex legal issues involving shifting burdens of persuasion will necessarily have to be addressed and the record before the Court does not indicate that Boyce possesses any particular knowledge or skill that would enable her to analyze these issues thoroughly and be prepared to meet the burdens placed upon a plaintiff in an action brought based upon allegations of unlawful discrimination.
Having considered the various factors outlined in Hodge, supra, the Court finds that it is reasonable and appropriate to grant Boyce's application for appointment of counsel. Therefore, the Pro Se Office for this judicial district is directed to request Pro Bono counsel for plaintiff in accordance with the Pro Bono panel's procedures.
SO ORDERED.