456 F.2d 588 (6th Cir. 1972), 71-1241, Harris v. Walgreen's Distribution Center

Docket Nº:71-1241.
Citation:456 F.2d 588
Party Name:George L. HARRIS, Plaintiff-Appellant, v. WALGREEN'S DISTRIBUTION CENTER, Defendant-Appellee.
Case Date:February 10, 1972
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 588

456 F.2d 588 (6th Cir. 1972)

George L. HARRIS, Plaintiff-Appellant,

v.

WALGREEN'S DISTRIBUTION CENTER, Defendant-Appellee.

No. 71-1241.

United States Court of Appeals, Sixth Circuit.

February 10, 1972

Page 589

George L. Harris, on brief in pro. per.

David W. Zugschwerdt, Washington, D. C., for E. E. O. C. as amicus curiae; Stanley P. Hebert, Gen. Counsel, John de J. Pemberton, Jr., Deputy Gen. Counsel, Julia P. Cooper, Chief Appellate Section, Robert Fitzpatrick, Atty., E. E. O. C., Washington, D. C., on brief.

C. L. Ames, Chicago, Ill., for appellee; R. H. Wessels, Chicago, Ill., on brief.

Before PHILLIPS, Chief Judge, and EDWARDS and BROOKS, [*] Circuit Judges.

EDWARDS, Circuit Judge.

In this appeal appellant, a discharged employee of Walgreen's, appeals from two orders entered by a District Judge in the United States District Court for the Western District of Tennessee, Western Division. Both orders denied the appointment of counsel for him under 42 U.S.C. § 2000e-5(e) (1970), which says in part as follows:

"Upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the action without the payment of fees, costs, or security."

This language makes it possible for a District Court wherein a civil rights complaint charging unfair employment practices has been filed to appoint counsel for a plaintiff "in such circumstances as the court may deem just." In this case appellant had originally filed a complaint before the Equal Employment Opportunity Commission. After investigation and findings of fact by an examiner for EEOC, the Commission entered

Page 590

a formal order finding no reasonable cause for complaint.

In the first order entered by the District Judge he set out some of the essential facts as follows:

"George L. Harris having filed a charge with the Memphis Area Office of the Equal Employment Opportunity Commission, which charge was assigned Case No. YME1036, the Commission having found that there was no reasonable cause to believe the charge to be true, a Notice of Right to Sue Within 30 Days having been issued on January 8, 1971, George L. Harris having applied in person for appointment of counsel on January 26, 1971, and the Court having read the Area Director's Findings of Fact, dated August 17, 1970, and the decision of the Commission dated December 23, 1970, the Court is of the opinion that it should not appoint an attorney pursuant to 42 U.S.C.A. § 2000e-5(e).

"IT IS, THEREFORE, ORDERED that the Court declines to appoint an attorney on the application of George L. Harris pursuant to 42 U.S.C.A. § 2000e-5(e). However, nothing herein shall preclude George L. Harris from obtaining counsel of his own choice if he so desires.

"This 26th day of January 1971.

/s/ Robert M. McRae, Jr.

U. S. District Judge."

Subsequently, and in this instance more than 30 days after the notice of right to sue ( See 42 U.S.C. § 2000e-5(e)) appellant filed an "Amended Petition," again seeking appointment of counsel but reciting his cause of action in more detail. The District Judge dismissed this petition again denying appointment of counsel, but adding as rationale for dismissal that the amended petition had not been filed within the statutory limit of 30 days.

On appeal to this court, intervenor EEOC argues vigorously that the administrative determination of no probable cause by EEOC cannot appropriately be the sole ground for denial of counsel and urges reversal because EEOC reads the District Judge's order as founded on that reason alone.

We agree that denial of counsel is not mandated by an EEOC finding of no probable cause. Indeed, we would regard a record which showed this as the sole reason for denial of counsel as founded on error. See Robinson v. Western Electric (7th Cir. 1971).

In a case construing the effect of an EEOC no probable cause finding, the Fifth Circuit recently said:

"It seems completely unfair to nullify the grievant's complaint by a non-reviewable conclusion of the Commission, particularly when he has fully complied with the requirements of the statute. In the circumstances of this case the courts afford the only effective remedy under the present state of the law. Lawsuits and disputes are for the courts. We will not permit the single finding of this investigatory agency to stand as a complete defense which precludes all hope of adversary adjudication or remedial action in the courts." Beverly v. Lone Star Lead Construction Corp., 437 F.2d 1136, 1141 (5th Cir. 1971).

See also Fekete v. United States Steel Corp.,...

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