Tatum v. Community Bank

• Decision Date: 24 October 1994
• Docket Number: No. 1:94-MC-45.,1:94-MC-45.
• Citation: 866 F. Supp. 988
• Parties: Brenda TATUM, v. COMMUNITY BANK.
• Court: U.S. District Court — Eastern District of Texas

866 F. Supp. 988

Brenda TATUM, v. COMMUNITY BANK.

No. 1:94-MC-45.

United States District Court, E.D. Texas, Beaumont Division.

October 24, 1994.

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Brenda Tatum, pro se.

MEMORANDUM AND ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND OVERRULING MOVANT'S OBJECTIONS

JOE J. FISHER, District Judge.

Movant Brenda Tatum, proceeding pro se, brings a motion in which she requests in forma pauperis status and appointment of counsel in a proposed Title VII action against her former employer, Community Bank. Movant alleges racial discrimination was the reason for her employment termination.

On August 26, 1994, United States Magistrate Judge Earl S. Hines issued a Report and Recommendation after a hearing in which movant addressed her claim. Judge Hines recommended that movant be permitted to proceed in forma pauperis, but that appointment of counsel be denied for lack of a meritorious claim.

Movant filed objections to the magistrate judge's report on September 12, 1994.

This court has engaged in a de novo review of movant's objections, the magistrate judge's report, the record, pleadings, and all other available evidence. For reasons expressed herein, the magistrate judge's report and recommendation will be adopted, and movant's objections overruled.

THE MAGISTRATE JUDGE'S REPORT

The magistrate judge reported movant had insufficient assets to hire an attorney and had made a "reasonably diligent effort under the circumstances to obtain counsel." See Bradshaw v. Zoological Society, 662 F.2d 1301 (9th Cir.1981); Caston v. Sears, Roebuck, & Co., 556 F.2d 1305 (5th Cir.1977). However, the magistrate judge found movant had established a prima facie case under Title VII because she is a racial minority, she was qualified for her job as a bookkeeper, she was discharged from her position, and she was replaced by a white female. Barnes v. Yellow Freight Systems, 778 F.2d 1096 (5th Cir.1985). The respondent, however, presented several race-neutral reasons for movant's termination, which followed movant's initial probationary period of ninety days. These reasons included that movant wore headphones at work, exhibited inappropriate behavior and angry outbursts to co-workers and supervisors, and excessive absenteeism. This absenteeism included four absences in ninety days, all occurring on a Friday or a Monday. The respondent also presented a list of three other employees terminated for excessive absenteeism and inadequate performance between 1990 and 1992, all of whom were white.

The magistrate judge concluded that movant had failed to demonstrate that these reasons were a pretext to mask a racially motivated reason for her termination. See id. at 1101.

OBJECTIONS

Movant objects to the magistrate judge's recommendation that she be denied appointment of counsel. She argues that she has presented a meritorious claim because "anytime a case involves the firing or discharge of an employee for no apparent reason had sic to be discrimination." Movant bolsters her argument by reiterating that her termination for lack of communication with her colleagues was merely a pretext, and that the real reason she was fired was on the basis of her race.

DISCUSSION

There is no doubt movant has made a prima facie case for discrimination, but there is no evidence of racially motivated intent to support her claim. It is not enough for movant to base her claim for the appointment of an attorney on the grounds that "an attorney should have been paid for by the county because of being poor sic and I am a Black female overweight and over 30 years of age."

The record in this case reveals that the only alleged evidence proffered by the movant to support her claim of racial discrimination is that her supervisors made non-racial but derogatory comments about her, including that she was an "airhead." Movant alleges that several of her co-workers live in predominantly white areas including Vidor, Texas, and therefore may have preconceived notions of race. Such allegations do not support a showing of racially discriminatory intent in the employer's decision to terminate.

Movant's objections likewise offer no other reason to support her claim of pretextual termination. It is not enough to assert that merely because she is a "black female," she was fired on the basis of her race. Subjective belief and speculation cannot support a basis for judicial relief. See Hornsby v. Conoco, 777 F.2d 243 (5th Cir.1985). Therefore, movant has failed to demonstrate a reasonable likelihood of success meriting the appointment of an attorney. When one weighs the respondent's rationale with the movant's, it is clear she has not overcome her burden.

Accordingly, the findings of fact & conclusions of law of the magistrate judge are correct, the report of the magistrate judge is ADOPTED and movant's objections are OVERRULED. It is therefore

ORDERED and ADJUDGED that movant's motion to proceed in forma pauperis is GRANTED. It is further

ORDERED and ADJUDGED that movant is GRANTED a reasonable period of time, up to and including November 30, 1994, within which to file her Title VII complaint on a pro se basis or through privately retained counsel, if she wishes to proceed. It is further

ORDERED and ADJUDGED that movant's motion for appointment of counsel is DENIED.

Failure of movant to proceed within such time will result in the automatic termination of this proceeding without the necessity of further order of the Court.

SIGNED this 20 day of October, 1994.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

HINES, United States Magistrate Judge.

Brenda Tatum filed a motion in which she requests in forma pauperis status and appointment of counsel in a proposed Title VII (employment discrimination) suit.¹ Ms. Tatum proposes suit against her former employer, Community Bank, charging discrimination due to race and color (Black).

The motion was referred to the undersigned for hearing and issuance of a report and recommendation as to whether the motion should be granted. A hearing was convened at 2:15 p.m. on August 9, 1994 in Beaumont, Texas at the Jack Brooks Federal Building. The movant, Brenda Tatum, appeared to present her motion and respond to questions.

Prior to the hearing, the court ordered movant to produce for the court's inspection a copy of her Equal Employment Opportunity ("EEO") investigative file. The EEO file was received by the court on July 18, 1994 and reviewed prior to the hearing. This report is based upon movant's complete court file, the EEO investigative file, movant's testimony and documentation provided at the hearing, and correspondence following the hearing.

I. The Threshold Question: Is The Motion Moot Because The Claim Is Barred By Limitations?

It is appropriate first to examine whether movant's claim is time barred. If so, an examination of the merits of her motion for appointment of counsel would be purely academic.

Under Title VII, individuals are required by statute to file their complaint in Federal Court within 90 days after the Commission has given notice to them that it has not filed a civil action. 42 U.S.C. § 2000e-5(f)(1). The beginning of the 90-day period of limitations begins to run on the date that the EEOC right-to-sue letter is delivered to the claimant. Ringgold v. National Maintenance Corp., 796 F.2d 769 (5th Cir.1986). Where there is an ambiguity as to when notice is given, courts recognize that the 90 days begin to run when the aggrieved party knows EEOC has completed its efforts. Zambuto v. American Telephone and Telegraph Co., 544 F.2d 1333 (5th Cir.1977).

In this case, movant received a letter from the EEOC dated February 25, 1994, informing her that she had the right to sue the respondent within ninety days of receipt of the notice. Thus, movant had until at least May 26, 1994 to file her Title VII complaint in federal court. Movant submitted her motion and proposed complaint on May 20, 1994, and therefore, her Title VII suit is not barred by limitations.

II. In Forma Pauperis Application

In Adkins v. E.I. DuPont de Nemours & Co., Inc., 335 U.S. 331, 69 S.Ct. 85, 93 L.Ed. 43 (1948), it was held that one need not be absolutely destitute to enjoy the benefit of proceeding in forma pauperis. An affidavit to proceed in forma pauperis is sufficient if it states that one cannot because of her poverty afford to pay for the costs of litigation and still provide for herself and any dependents. Id. at 339, 69 S.Ct. at 89.

Ms. Tatum has made a sufficient showing of poverty. In her sworn in forma pauperis affidavit, movant testified that she been unemployed since her termination on October 9, 1992. Movant receives $163.00 per month in AFDC benefits, and a $385.00 per month subsidy from the Beaumont Housing Authority.

Movant reports that she has no cash, no checking account, and no savings account. Movant resides with her fourteen year old daughter, Patience McHenry.

These facts favor granting movant's motion to proceed in forma pauperis.

III. Motion for Appointment of Counsel

A. Governing Principles

A Title VII plaintiff has no absolute right to an appointed counsel. Rather, the decision of whether to provide counsel lies solely within the discretion of the court. See Caston v. Sears, Roebuck and Co., 556 F.2d 1305 (5th Cir.1977); Neal v. IAM Local Lodge 2386, 722 F.2d 247 (5th Cir.1984); and Gonzalez v. Carlin, 907 F.2d 573 (5th Cir. 1990). Governing circuit law indicates that in the exercise of its discretion, the district court should consider the following relevant factors:

1) Whether the complainant has the financial ability to retain counsel;

2) Whether the complainant has made a diligent effort to retain counsel; and

3) Whether the complainant has a meritorious claim.

These factors were first enumerated in Caston v. Sears, Roebuck & Company, supra. They were reconfirmed in Neal v. IAM Local Lodge 2386, supra, and ...