Opinion
06 Civ. 896 (LAK) (HBP).
February 15, 2007
MEMORANDUM OPINION AND ORDER
By notice of notion dated January 13, 2006 (Docket Item 3) plaintiff moves for pro bono counsel. For the reasons set forth below, the motion is denied without prejudice to renewal.
In a civil case, such as this, the Court cannot actually "appoint" counsel for a litigant. Rather, in appropriate cases, the Court submits the case to a panel of volunteer attorneys. The members of the panel consider the case, and each decides whether he or she will volunteer to represent the plaintiff. If no panel member agrees to represent the plaintiff, there is nothing more the Court can do. See generally Mallard v. United States District Court, 490 U.S. 296 (1989). Thus, even in cases where the Court finds it is appropriate to request volunteer counsel, there is no guarantee that counsel will actually volunteer to represent plaintiff.
The factors to be considered in ruling on a motion for pro bono counsel are well settled and include "the merits of plaintiff's case, the plaintiff's ability to pay for private counsel, [plaintiff's] efforts to obtain a lawyer, the availability of counsel, and the plaintiff's ability to gather the facts and deal with the issues if unassisted by counsel."Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1986). Of these, "[t]he factor which command[s] the most attention [is] the merits." Id. Accord Odom v. Sielaff, 90 Civ. 7659 (DAB), 1996 WL 208203 (S.D.N.Y. April 26, 1996). As noted fifteen years ago by the Court of Appeals:
Courts do not perform a useful service if they appoint a volunteer lawyer to a case which a private lawyer would not take if it were brought to his or her attention. Nor do courts perform a socially justified function when they request the services of a volunteer lawyer for a meritless case that no lawyer would take were the plaintiff not indigent.Cooper v. A. Sargenti Co., supra, 877 F.2d at 174. See also Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997) ("`In deciding whether to appoint counsel . . . the district judge should first determine whether the indigent's position seems likely to be of substance.'").
Apart from her financial condition, the present application addresses none of these factors. Plaintiff provides no information concerning her efforts to secure counsel on her own, nor does she explain why she is unable to litigate the matter without counsel
Moreover, although the record in this case is still extremely sparse and it impossible to make a determination at this time concerning the ultimate merits of plaintiff's claims, plaintiff's claims, at least at this early stage, do not seem particularly strong. Plaintiff's claim of sexual harassment appears to be based on a single incident in which she accompanied two gay male employees on a business trip and was exposed to an extended, graphic description of their sexual activities. Plaintiff makes no claim that any sexually disparaging remarks were directed at her, that the experience was threatening to her, that she asked the co-employees to stop or change the subject or that she suffered any adverse employment action as a result of this incident. Although I do not doubt that the experience was unpleasant, probably uncomfortable and appears to have been in profoundly bad taste, it is difficult it understand how it constituted a form of gender-based discrimination. See Burlington Northern Santa Fe Ry. Co. v. White, 126 S.Ct. 2405, 2415 (2006) ("Title VII, we have said, does not set forth `a general civility code for the American workplace.'")
Similarly, plaintiff's age-discrimination and ADA claims appears be based on the accommodations provided to a younger co-employee who became pregnant. Plaintiff, however, was not seeking the same accommodations that were provided to the putative comparator. Plaintiff's strongest claim appears to be based on her allegation that her employer refused to permit her to work through lunch and leave an hour early without altering the nature of plaintiff's duties and reducing her compensation. Although this aspect of plaintiff's claim is her strongest, given the sparse record available to me, I cannot conclude that it is sufficiently meritorious to warrant the appointment of counsel. If, for example, a substantial portion of plaintiff's work had to be done during the last hour of the work day, plaintiff's contention that the requested accommodation was reasonable becomes more problematic.
Accordingly, plaintiff's motion for counsel is denied without prejudice to renewal. Any renewed motion should be accompanied by an affidavit addressing all the relevant factors identified above.
SO ORDERED