Jones v. WFYR Radio/RKO General

Citation626 F.2d 576
Decision Date22 July 1980
Docket NumberNo. 79-2135,79-2135
Parties27 Fair Empl.Prac.Cas. 864, 23 Empl. Prac. Dec. P 31,120 Excell JONES, Plaintiff-Appellant, v. WFYR RADIO/RKO GENERAL, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Janet M. Koran, Chicago, Ill., for plaintiff-appellant.

Lawrence I. Kipperman, Sidley & Austin, Chicago, Ill., for defendants-appellees.

Before SWYGERT, BAUER and CUDAHY, Circuit Judges.

PER CURIAM.

Plaintiff-appellant Excell Jones filed a pro se complaint against defendant-appellant WFYR Radio/RKO General charging a continuing course of race discrimination against her. Jones sought equitable and other relief pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(g) (1976). She appeals the district court's order denying her motion for appointment of counsel. * We vacate and remand.

Section 706(f) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(f)(1), empowers the district court to appoint an attorney to represent a plaintiff without charge "in such circumstances as the court may deem just." Section 706(f) thus confers discretion on the district court to appoint counsel.

Several circuits have enunciated standards for the appointment of counsel under Title VII, although this circuit has not heretofore. In Caston v. Sears, Roebuck & Co., 556 F.2d 1305 (5th Cir. 1977), the Fifth Circuit articulated three factors to be weighed by the district court: the merits of the plaintiff's claim, the plaintiff's diligence in attempting to obtain a lawyer, and the plaintiff's financial ability to retain counsel. The court emphasized that its intent was not to saddle a plaintiff with formalized requirements but that the factors were "simply ingredients in the total mix of relevant information which should guide the discretion of the district court." Id. at 1310.

Applying those factors in Luna v. Int'l. Assn. of Machinists & Aerospace Workers Local # 36, 614 F.2d 529 (5th Cir. 1980), the Fifth Circuit found an abuse of discretion in the lower court's refusal to appoint counsel. Luna received a right-to-sue letter from the EEOC for a disparate treatment claim. He also contacted four attorneys and listed particular reasons why they would not take his case. He further reported a monthly income of only $534 and listed "meager assets." The court concluded that Luna had satisfied each factor of Caston.

Other circuits have applied the same standards. In Harris v. Walgreen's Distribution Center, 456 F.2d 588 (6th Cir. 1972), the Sixth Circuit upheld an order denying the appointment of counsel because the plaintiff was gainfully employed and because the district court had reviewed the detailed findings of the EEOC concerning the merits of the plaintiff's case. In Spanos v. Penn Central Transportation Co., 470 F.2d 806 (3d Cir. 1972), the denial of counsel was affirmed because the plaintiff made no showing that he tried to obtain counsel. And in Hudak v. Curators of University of Missouri, 586 F.2d 105 (8th Cir. 1978), the court found no abuse of discretion in refusing to appoint counsel for a former law professor who, although indigent, had already been represented by three attorneys.

The record here showed that Jones contacted more than thirty lawyers over a two month period while attempting to secure representation. None of them agreed to do so, ostensibly because Jones was unable to pay attorneys fees.

Jones also submitted an affidavit indicating that she was unemployed and owned no property except an automobile. At a later hearing, Jones stated that she had sold the car to pay rent.

Jones filed a charge with the EEOC and received a notice of right to sue. The Commission dismissed her charge because it found "no reasonable cause . . . to believe that the allegations made in (her) charge (were) true." We agree with the Fifth and Sixth Circuits that an EEOC finding of no probable cause alone is insufficient to justify the denial of a request for appointed counsel. Luna v. Int'l. Assn. of Machinists & Aerospace Workers Local # 36, 614 F.2d at 531; Harris v. Walgreen's Distribution Center, 456 F.2d at 590. See also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 1822, 36 L.Ed.2d 668 (1973); Flowers v. Local No. 6, Laborers Int'l. Union of No. America, 431 F.2d 205 (7th Cir. 1970) (EEOC finding of no probable cause not a bar to...

To continue reading

Request your trial
17 cases
  • Poindexter v. F.B.I.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 26, 1984
    ...v. Central Bank, 717 F.2d 1340, 1342 & n. 2 (11th Cir.1983) (per curiam); Bradshaw, 662 F.2d at 1318; Jones v. WFYR Radio/RKO General, 626 F.2d 576, 578 (7th Cir.1980) (per curiam) (endorsing these criteria as "suggested guidelines" but indicating that "the district court may employ whateve......
  • Bradshaw v. Zoological Soc. of San Diego
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 7, 1981
    ...Four circuits have expressly held orders denying appointment of counsel in Title VII cases appealable under Cohen. Jones v. WFYR Radio, 626 F.2d 576 (7th Cir. 1980); Hudak v. University of Missouri, 586 F.2d 105 (8th Cir. 1978) (per curiam), cert. denied, 440 U.S. 985, 99 S.Ct. 1799, 60 L.E......
  • Henry v. City of Detroit Manpower Dept.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • May 22, 1985
    ...696 F.2d 145 (1st Cir.1983); Randle v. Victor Welding Supply Co., 664 F.2d 1064 (7th Cir.1981), overruling Jones v. WFYR Radio/RKO General, 626 F.2d 576 (7th Cir.1980); Cotner v. Mason, 657 F.2d 1390 (10th Cir.1981); Miller v. Pleasure, 425 F.2d 1205 (2d Cir.), cert. denied, 400 U.S. 880, 9......
  • Robbins v. Maggio
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 14, 1985
    ...Circuit, in Randle v. Victor Welding Supply Co., 664 F.2d 1064, 1066 (7th Cir.1981), to overrule its prior decision in Jones v. WFYR Radio/RKO General, 626 F.2d 576, 576 n. * (7th Cir.1980), which, in reliance on Caston, had held orders such as these to be appealable. The Tenth Circuit, rel......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT