Opinion
Civil Action No. SA-05-CA-517 RF.
June 7, 2005
ORDER AND OPINION DENYING REQUEST FOR APPOINTMENT OF COUNSEL (DOCKET ENTRY 2)
I. Statement of the Case
Plaintiff, Kari D. Slaten, brings this Title VII employment discrimination action against her former employer, the New Braunfels Herald-Zeitung, alleging that because of her gender she was treated differently, and worse, in the terms and conditions of her employment. Specifically, plaintiff alleges that she was terminated in an act of sexual discrimination and/or retaliation. Plaintiff now requests that I appoint her counsel to assist her in prosecuting her case.
See Federal Court Complaint, received on June 1, 2005; and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq.
Docket Entry 2.
II. Discussion
Title VII, provides that "upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant." Although this section grants the right to request an attorney, it does not confer a right to actually have one appointed. The decision whether to appoint an attorney is one within the broad discretion of the trial judge given the particular facts of the case. The following three factors are generally balanced by courts in determining whether to appoint an attorney: (1) the merits of the claim; (2) the plaintiff's own efforts to secure private counsel; and (3) the plaintiff's financial ability to retain private counsel. Several courts also consider a plaintiff's ability under the circumstances of the case to present the case without the assistance of an attorney, and the Fifth Circuit has recognized the correctness of such further inquiry.A. Plaintiff's Ability to Present Her Case
From the pleadings and the supporting documents made of record, plaintiff appears to have the ability to litigate her case without the need of an attorney. Her submissions to the court show that plaintiff possesses the ability to explain the factual circumstances leading up to her formal charge of discrimination in a succinct and clear manner. This is not surprising considering plaintiff's educational and vocational experience. For instance, the record reveals that plaintiff, graduated from college and has held two positions as a photo journalist in 1999 and from 2000-2003.
Docket Entry 3, ¶ II, III.
Moreover, it does not appear likely at this early juncture of the case that presentation of plaintiff's case will require knowledge of complex legal issues. For example, plaintiff has identified three fact witnesses in her pleadings who would testify in support of her allegations: Gary Maitland, Chris Pace and Margaret Edmondson. Plaintiff also states that she has copies of performance evaluations and a tape recording which support her case.
Complaint, ¶¶ 8b-8c.
Based on the limited scope of the legal issues presented in this proceeding, plaintiff's academic and vocational backgrounds, and the adequate job plaintiff has done to this point of presenting her case pro se in federal court, I must conclude that this factor weighs against granting plaintiff's motion for appointment of counsel.
B. Efforts to Secure Counsel
The record indicates that plaintiff has not made a concerted effort to retain counsel on her own. Plaintiff asserts that she contacted several attorneys over one year ago and has recently contacted only the law firm of Gaul and Dumont. In response to a question about plaintiff's contacting the local legal aid association, plaintiff left the section on the legal aid association blank. Her answer to the question about contacting the local lawyer referral service was cryptic: "see previous page I ( sic) no longer have the list to provide names." Because plaintiff has not made a significant effort to retain counsel on her own, this factor weighs against appointment of counsel.
Docket Entry 2, at 1.
Docket Entry 2, at 2.
C. Financial Ability to Retain Private Counsel
In analyzing this factor, a showing of poverty as substantial as is necessary to support a motion to proceed in forma pauperis is not required. There need only be insufficient assets and income to enable plaintiff to afford an attorney to investigate and file her claim.
Reado, 929 F. Supp. at 1053 (citing Ivey v. Board of Regents, 673 F.2d 266 (9th Cir. 1982)).
Plaintiff's answers to information about her financial status were confusing. When asked to list the income she received in the last six months, she responded "$6,000."20 In the paragraph requesting plaintiff to enumerate her monthly expenses, she listed monthly expenses totaling $2,030, as well as "self-employment appx. (s ic) $400-."21 Because it appears that plaintiff's income of $6,000 outweighs her expenses of $2,030, this factor also weighs against appointment of counsel.
D. Merits of the Case
At this early juncture in the case, there is insufficient information to determine if plaintiff's Title VII case has any merit. Based on the evidence of record, there is no indication that plaintiff's gender motivated the defendant's decisions of which she complains in this case ( i.e., plaintiff's termination). In fact, the EEOC investigator noted that none of plaintiff's witnesses supported her
allegations that [she was] subjected to offensive sexist or sexual comments. None of the witnesses had knowledge of [her] participating in a protected activity . . . The testimony secured indicated [she] had been verbally coached on performance and attendance issues by Gary Maitland prior to being discharged. The testimony did not support [her] allegation that [she was] fired because David Ingram, part-time photographer, failed to cover the Comal County Fair Parade. According to the testimony, [she] stated in the newsroom that [she] had taken sleeping pills the previous night which caused [her] to oversleep and miss [her] assignment (covering the Comal County Fair Parade). The totality of the evidence and testimony did not reveal a nexus between [her] sex, [her] allegations of retaliation, and the termination of [her] employment.22
Accordingly, based on the limited record before me, plaintiff's allegations do not present a particularly strong Title VII case, and the "merits of the case" do not weigh in favor of appointing counsel.
III. Conclusion
After considering the relevant factors, as discussed in this Order, plaintiff's request for appointment of counsel (Docket Entry 2) is DENIED.