Opinion
No. 2:02-CV-08909
December 17, 2002
MEMORANDUM AND ORDER
Presently before this court is Plaintiff Susan Pluck's motion to proceed in forma pauperis and Plaintiffs motion for the appointment of counsel. Plaintiffs motions will be granted. However, the court will dismiss Plaintiffs discrimination claim, and Plaintiffs intimidation and retaliation claim without prejudice for failure to state a claim on which relief may be granted. The court will dismiss with prejudice Plaintiffs prayer to enjoin the Commonwealth of Pennsylvania's Bureau of Unemployment Compensation Benefits and Allowances from bringing an action against Plaintiff to recoup an unemployment compensation overpayment.
I. Background
Susan Pluck ("Pluck") was allegedly discharged from her Mailhandler position at the United States Post Office's Lancaster facility on December 4, 2001. The alleged reasons for the discharge are not relevant here. The American Postal Workers Union, on behalf of Pluck, allegedly filed a grievance seeking to re-instate Pluck. On March 5, 2002, Arbitrator M. David Vaughn, allegedly awarded Pluck's reinstatement with back pay minus pay for a 30 day suspension. The Arbitration Award also required Pluck to attend the Post Office's "Employee Assistance Program and accept such counseling and treatment as the EAP may recommend." In the Matter of the Arbitration Between: United States Postal Serv. and American Postal Workers Union, USPS Nos. C98C-1C-D 02054405 C98C-1C-D 02032866, at 1 (Mar. 5, 2002).
Pluck allegedly returned to work on Monday March 11, 2002. Pluck allegedly went on medical leave on Sunday March 17, 2002. Pluck alleges that stress and depression required the leave of absence. Pluck also alleges that she has twice been hospitalized for depression prior to March 2002. Pluck allegedly met with EAP Counselor Virginia Cormier on March 22, 2002 to discuss her mental situation.
After Pluck's discharge, but before her reinstatement, Pluck allegedly received unemployment compensation. After her reinstatement and award of back pay, the Commonwealth of Pennsylvania's Bureau of Unemployment Compensation Benefits and Allowances ("the UC Bureau") allegedly sent Pluck a letter, in September 2002, requesting that she promptly repay a $6,208.00 overpayment. If not, the UC Bureau would allegedly institute an action under § 804(B) of Pennsylvania's Unemployment Compensation Law to recover the unpaid balance. See 43 Pa. C.S.A. § 874(b) (1980).
II. Discussion
A. In Forma Pauperis
District courts have discretion to grant or deny a motion requesting in forma pauperis under 28 U.S.C. § 1915(a) for civil actions or 42 U.S.C. § 2000e-5(f)(1) for actions brought under Title VII of the Civil Rights Act of 1964. See Jones v. Zimmerman, 752 F.2d 76, 78 3d 1985); Urban v. Henderson, No. CIV. A. 99-4244, 1999 WL 675466, at *1 (E.D. Pa. Aug. 3, 1999). "Factors to apply in making the determination include whether the plaintiff owns any real property, whether he or she is employed, whether he or she is the recipient of a pension and the number of dependents that rely on him or her for support." Urban, 1999 WL 675466, at *1 (citing In re Koren, 176 B.R. 740, 743 (Bank. E.D. Pa. 1995)).
Pluck has demonstrated her weak financial position. Pluck has an eight year-old dependant. She has about $1000 in a checking account and $500 in a savings account. Her ex-husband is over $17,000 in arrears for child support. Pluck and her a new husband purchased a house in 1998 for $89,000.00 using a mortgage of $91,500.00. The Plucks appear to be deeply in debt. The court will therefore grant Plaintiffs motion to proceed in forma pauperis.
B. Why Pluck's Case Will Be Dismissed In Part Under § 1915(e)(2)(B).
We acknowledge that Pluck drafted and filed her complaint pro se. We therefore will liberally construe Pluck's complaint and afford her deference. Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding pro se drafted complaints to a "less stringent standard than formal pleadings drafted by lawyers. . . ."). However, Pluck's complaint must nonetheless state a cause of action upon which relief may be granted even under a liberal reading. The court may at any time dismiss a complaint broughtin forma pauperis "if it fails to state a claim on which relief may be granted," or seeks a monetary award against a defendant who is immune to such relief. 28 U.S.C. § 1915(e)(2)(B)(ii)-(iii).
28 U.S.C. § 1915 states in relevant part:
(e)(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that — . . .
It seems that Pluck is asserting three claims: (1) that her employer failed to abide by the Arbitrator's decision; (2) that she was intimidated at work following her reinstatement; and (3) she was discriminated against because she has a mental illness. Pluck seeks relief in the form of: (1) full enforcement of the Arbitrator's decision including full back pay; (2) full pay for medical leave; (3) a transfer to another postal facility; and (4) the right to keep her unemployment benefits.
1. Enforcement of the Arbitrator's Decision Order
Federal courts have the authority to enforce arbitration awards. See News America Publications, Inc. v. Newark Typographical Union, 918 F.2d 21, 24 (3d Cir. 1990) ("A court must enforce an arbitration award that 'draws its essence from an collective bargaining agreement.'") (quoting United Steel Workers of Am. v. Enterprise Wheel Car Co., 363 U.S. 593, 597 (1960)); cited by Exxon Shipping Co. v. Exxon Seaman's Union, 73 F.3d 1287, 1291 (3d Cir. 1996). We have jurisdiction over Pluck's enforcement action pursuant to 9 U.S.C. § 9. See Weststar Assoc. Inc. v. Tin Metals Co., 752 F.2d 5 (1st Cir. 1985) (holding that district courts have jurisdiction to enforce arbitration awards where the arbitration took place within its jurisdiction).
Section 9 of the Federal Arbitration Act states: "if no court is specified in the agreement of the parties, then such application may be made to the United States court in and for the district within such award was made." Additionally, jurisdiction may be based on 29 U.S.C. § 185(a).
Pluck makes out a claim upon which relief may be granted because her complaint and exhibits allege that: (1) the Arbitrator's decision granted Pluck back pay minus 30 days suspension; and (2) the U.S. Postal Service only paid her back pay minus sixty days suspension. See In the Matter of the Arbitration Between: United States Postal Service and AFL-CIO, USPS Nos. C98C-1C-D 02054405 C98C-1C-D 02032866, at 1 (Mar. 5, 2002) ("The Removal is rescinded and the penalty reduced to a 30 calendar day suspension. Grievant shall be reinstated and made whole for all wages and benefits she would have earned, less the period of the suspension."); Pl.'s Br. Ex. PS Form 8039 "Back Pay Decision/Settlement Worksheet" (calculating back pay to be reimbursed from Jan. 3, 2002 to March 11, 2002 which is back pay minus sixty days suspended pay). Pluck has raised an issue upon which relief may be granted by this court.
2. Why Pluck's Alleged Intimidation Retaliation Claim Will Be Dismissed
The Fair Labor Standards Act ("FLSA") provides that it is unlawful for any person "to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the FLSA]." 29 U.S.C. § 215(a)(3).
To maintain an action under § 215(a)(3) for intimidation, the plaintiff must first establish a prima facie case by demonstrating that: "(1) he or she engaged in activity protected by the FLSA; (2) he or she suffered adverse action by the employer subsequent to or contemporaneous with such employee activity; and (3) a causal connection existed between the employee's activity and the employer's adverse action." Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1394 (10th Cir. 1997); see also Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989); cited by Todaro v. Township of Union, 27 F. Supp.2d 517, 540 (D.N.J. 1998).
Pluck has failed to make out a prima facie case. Therefore she has failed to state a claim upon which relief may be granted. Pluck has sufficiently alleged the first element. Pluck has alleged that she took part in a grievance action against her employer. A union grievance action is a protected activity under the FLSA.
However, Pluck has failed to properly allege the second element. Plucks alleges that: (1) her fellow employees were rude to her when she returned to work; and (2) Mike Stephenson of the American Postal Workers Union warned Pluck that management did not take "it lightly when they lost cases." Pl's Br. at 3-4. Neither assertation alleges that her employer took any action. Neither assertation alleges that there was an adverse effect on her employment. The alleged rudeness of her fellow employees is not an action taken by management. It is social behavior that this court can not control. The comments by Stephenson amount to a warning because Stephenson is President of the union that represented Pluck in her grievance. Pluck has not alleged that management made the comment, nor acted upon it. It is understandable that these alleged facts may have upset Pluck, but that is not a claim on which relief may be granted. Pluck's intimidation and retaliation claim will be dismissed without prejudice.
3. Why Pluck's Discrimination Claim Will Be Dismissed
To establish a prima facie case under the Americans with Disabilities Act ("ADA"), a plaintiff must show: (1) she is disabled within the meaning of the ADA; (2) she is otherwise qualified to perform the essential functions of the job; and (3) she has suffered an adverse employment decision because of discrimination. Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999). The ADA defines "disability" as: "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual . . . or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2)(A)-(C) (2000).
Pluck has sufficiently alleged the first two elements of the prima facie case. First, Pluck alleges that she suffers from depression which may be considered a disability within the meaning of the ADA. Second, Pluck alleges that she is qualified to preform her job and that she did preform her job during the week of March 11th 2002. However, Pluck fails to allege discriminatory activity by her employer. Pluck only alleges that the Employment Assistance Program ("EAP") Counselor, Virginia Cormier, was aware of Pluck's history of depression. Knowledge of her condition is not an "an adverse employment decision," nor a discriminatory activity. Pluck's discrimination claim will be dismissed without prejudice.
4. Why Pluck's Prayer for Relief from Reimbursing Unemployment Benefits Is Barred Under § 1915(e)(2)(B)(iii)
Pluck was allegedly overpaid $6,208.00 by the UC Bureau. Pluck's filings include a letter from the UC Bureau that requests prompt repayment. Pluck seeks to have this court enjoin the UC Bureau's potential recoupment action. This prayer for relief can not be sought against Postmaster General Potter. Postmaster General Potter is immune to such relief because he is the incorrect adverse party. Pluck should dispute this charge with the UC Bureau and not Postmaster General Potter. Pluck's prayer for relief from repaying an unemployment compensation overpayment will be dismissed with prejudice.
We would like to note that Pluck claimed not to have received unemployment compensation benefits in her Form 8039 Back Pay Decision/Settlement Worksheet on page 2. However, she acknowledges receipt of unemployment compensation benefits in her complaint. Pluck does not provide an explanation for the discrepancy.
C. Appointment of Counsel
There is no constitutional or statutory right to the appointment of counsel in a civil action. See Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997). The test for the appointment of counsel and for proceeding in forma pauperis are different and may lead to different results. See Molina v. Lancaster, 159 F. Supp.2d 813, 822 (granting in forma pauperis but denying appointment of counsel).
Congress has provided that a district court "may request an attorney to represent any person unable to afford counsel." 28 U.S.C.A. § 1915(e)(1). Because the statute gives the district court broad discretion, the United States Court of Appeals for the Third Circuit "has set forth a two-tiered analysis to guide the courts in their exercise of that discretion." See Molina, 159 F. Supp.2d at 817-18 (citing Tabron v. Grace, 6 F.3d 147, 155-58 (3d Cir. 1993)). Under the Tabron court's analysis, a district court must first determine whether the case has "arguable merit in fact and law." Tabron at 155. if the case is meritorious, then a court must move on to the second tier. The court must then consider whether: (1) the plaintiff is able to present her case; (2) the degree of difficulty or complexity of the legal issues; (3) the "degree to which factual investigation will be required and the ability of the indigent plaintiff to pursue such investigation," including whether discovery will be extensive; and (4) the extent to which the case will turn on credibility determinations and experts will be needed. Id. at 155-56.
Because two of Pluck's three claims will be dismissed for failure to state a claim upon which relief may be granted, we find that Pluck's intimidation and discrimination claims have no legal or factual merit. However, Pluck's action to enforce the arbitration award seems to have legal and factual merit at this time.
After weighing the four factors in part two of the Tabron test, we find that Pluck has met her initial burden for the appointment of counsel. First, although Plaintiff has written a credible complaint, she has difficulty structuring her arguments and organizing her thoughts. Plaintiff needs assistance of counsel to clearly make out her complaint. Second, although the legal claim is basic, the defense may raise complex affirmative defenses (such as jurisdictional, contractual or statutory defenses). At this time, the third and fourth factors are not relevant. We can not now predict: (1) the amount of discoverY that this matter will require; (2) whether the case will turn on credibility questions; nor (3) if expert witnesses will be called. The Clerk of Court will be instructed to attempt to secure legal counsel for Pluck.
Counsel may also aid Pluck in amending her other two claims within the 90 day period contained in the Order following this Memorandum. Because the two claims will be dismissed without prejudice, this court will accept an amended complaint that corrects the fatal flaws in the claims if the amendments are timely filed. See Potter v. Nat'l Parks Serv., No. Civ. A. 99-4340, 1999 WL 718617, at *1-2 (E.D. Pa. Sept. 7, 1999) (granting in forma pauperis and dismissing plaintiffs claims, but allowing forty-five days to amend the complaint because the claims were dismissed without prejudice).
We note that this does not guarantee that counsel will be appointed. We can only instruct the Clerk of Court to attempt to appoint counsel. Plaintiff should not rely on counsel being appointed. Instead, she should continue to pursue her claims and continue to seek private legal representation.
III. Conclusion
Pluck has failed to allege a prima facie case of: (1) intimidation in retaliation for her grievance; or (2) discrimination because of a mental illness. These claims will be dismissed without prejudice. Pluck has sufficiently alleged a claim to enforce the arbitrator's award. However, Pluck may not seek a injunction from repaying the UC Bureau the overpayment Pluck received because Post Master General Potter is immune from such relief. This prayer will be dismissed with prejudice. Pluck will be allowed to proceed in forma pauperis and the Clerk of Court will attempt to secure Pluck counsel. An appropriate order follows.ORDER
AND NOW, this 17th day of December, 2002, upon consideration of Plaintiffs complaint, attachments and Motion to Proceed In Forma Pauperis [1-1], it is hereby ORDERED that:
1. Plaintiff Susan M. Pluck's motion for appointment of counsel [1-1] is GRANTED. The
Clerk of Court for the Eastern District of Pennsylvania is hereby directed to represent plaintiff in the above-captioned matter; and
2. Plaintiff Susan M. Pluck's discrimination claim is DISMISSED as failing to state a claim on
which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) without prejudice to Plaintiffs right to submit an amended complaint within in 90 days and in accordance with the attached Memorandum; and
3. Plaintiff Susan M. Pluck's intimidation and retaliation claim is DISMISSED as failing to
state a claim on which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) without prejudice to Plaintiffs right to submit an amended complaint within 90 days and in accordance with the attached Memorandum; and
4. Plaintiff Susan M. Pluck's prayer for injunctive relief from a potential Commonwealth of
Pennsylvania recoupment action is DISMISSED as seeking relief from an immune defendant pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii) with prejudice; and
5. Plaintiff Susan M. Pluck's motion for leave to proceed in forma pauperis [1-1] is GRANTED
since it appears Plaintiff is unable to pay the cost of commencing this suit pursuant to 28 U.S.C. § 1915(a) as follows:
a. The complaint is to be filed, the summonses are to issue, service of the summonses and complaint is to be made upon the defendants by the U.S. Marshals Service in the event that waiver of service is not effected under Federal Rule of Civil Procedure 4(d)(2). To effect waiver of service the Clerk of Court is specially appointed to serve written waiver requests on the defendants. The waiver of service requests shall be accompanied by a copy of the complaint and shall inform the defendants of the consequences of compliance and of failure to comply with the requests. The requests shall allow the defendants at least thirty (30) days from the date they are sent (sixty (60) days if addressed outside any judicial district of the United States) to return the signed waivers. If a signed waiver is not returned with the time limit given, the Clerk of Court's office shall transmit the summons and a copy of the complaint to the U.S. Marshals Service for immediate service under Federal Rule of Civil Procedure 4(c)(1), and a copy of this order is to be directed to all parties.
b. All original pleadings and other papers submitted for consideration to the Court in this case are to be filed with the Clerk of Court. Copies of papers filed in this court are to be served upon counsel for all other parties (or directly on any party acting pro se). Service may be by mail. Proof that service has been made is provided by a certificate of service. This certificate should be filed in the case along with the original papers and should show the day and manner of service. An example of a certificate of service by mail follows:
I, (name), do hereby certify that a true and correct copy of the foregoing (name of pleading or other paper) has been served upon the (name(s) of person(s) served) by placing the same in the U.S. Mail, properly addressed, this (date) day of (month), (year).
___________________ (Signature)
If any pleading or other paper submitted for filing does not include a certificate of service upon the opposing party or counsel for opposing party, it may be disregarded by the Court.
c. Any request for court action shall be set forth in a motion, properly filed and served. The parties shall file all motions, including proof of service upon opposing parties, with the Clerk of Court. The Federal Rules of Civil Procedure and local rules are to be followed. Plaintiff is specifically directed to comply with Local Civil Rule 7.1 and serve and file a proper response to all motions within fourteen (14) days. Failure to do so may result in dismissal of this action.
d. No direct communication is to take place with the District Judge or United States Magistrate Judge with regard to this case. All relevant information and papers are to be directed to the Clerk of Court.
e. In the event the summons is returned unexecuted, it is plaintiffs responsibility to ask the Clerk of Court to issue an alias summons and to provide the Clerk of Court with defendant(s) correct address(es), so service can be made.
f. The parties should notify the Clerk's Office when there is an address change. Failure to do so could result in court orders or other information not being timely delivered, which could affect the parties' legal rights.
(B) the action or appeal —
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune to such relief.28 U.S.C. § 1915(e)(2)(B)(i)-(iii).