Opinion
No. 04 Civ. 4551 (LTS)(KNF).
March 14, 2005
MEMORANDUM and ORDER
Plaintiff Cynthia Everett ("Everett") brought the instant action, pursuant to Title VII of the Civil Rights Act of 1964. She contends that her former employer, defendant Memorial Sloan-Kettering Cancer Center, discriminated against her based on her race and color when it failed to honor a request by Everett's immediate supervisor that Everett's salary be increased and that her position with her employer be upgraded. Everett's supervisor complained to her superiors because she had been given an oral assurance that Everett's salary would be increased. However, no action was taken to effect that salary change for Everett for an inordinate amount of time. Meanwhile, a white employee, whose tenure in her position with the defendant was considerably shorter than Everett's, received a salary adjustment. Everett's supervisor opined that since Everett is black, the disparity in treatment "did not convey the environment of equal opportunity in the workplace."
Later, when a managerial position became vacant in the unit to which Everett was assigned, Everett applied for the position. Everett was not asked to fill the vacancy. It was filled by a white woman, whom Everett alleges she was then instructed to train.
Everett, who is proceeding pro se in this action, has made an application to the Court that it appoint counsel to represent her. That application is addressed below.
Unlike criminal defendants, indigents like the plaintiff 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. In the instant case, the plaintiff made an application to proceed in forma pauperis, which was granted. Consequently, 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 pleading" (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.
Looking solely to the face of the complaint filed by Everett, there is reason to doubt that the claims she has asserted in this action have merit. The Court is mindful that an inference of discrimination can arise when an individual of one race is treated less favorably than a person of another race who is similarly situated. See Norville v. Staten Island University Hospital, 196 F.3d 89, 95 (2d Cir. 1999); Graham v. Long Island Railroad, 230 F.3d 34, 38 (2d Cir. 2000). However, from the face of the pleading, it is not possible for the Court to assess whether the person selected to fill the job vacancy that Everett sought was similarly situated to her in all material respects. The same is true with respect to the person identified by Everett's former supervisor as having received a salary increase while Everett's request for a salary adjustment languished.
Under the circumstances, the Court finds that at this juncture in the proceedings, based solely on the face of the pleading, granting Everett's request that counsel be appointed to represent her would not be a prudent use of a scarce resource, the services of pro bono counsel. Therefore, Everett's application is denied, without prejudice to its renewal.
SO ORDERED.