UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
September 28, 1998
PHYLLIS F. CATZ, ASSISTANT SUPERINTENDENT, MILLBURN PUBLIC SCHOOLS
The opinion of the court was delivered by: Joel A. Pisano United States Magistrate Judge
JOEL A. PISANO, UNITED STATES MAGISTRATE JUDGE
Before the Court is Plaintiff's application for appointment of counsel. Defendant has not filed opposition, and the Court decides the matter without oral argument pursuant to Rule 78 of the Federal Rules of Civil Procedure. For the reasons set forth below, Plaintiff's application is denied.
Plaintiff Saul Nadler filed suit on August 4, 1998, alleging that Defendant Phyllis F. Catz discriminated against Plaintiff based on his age. Specifically, Plaintiff alleges that Defendant violated the Age Discrimination in Employment Act, 29 U.S.C. § 623 (1985) (ADEA), because she failed to hire him as the science supervisor for the Millburn Township Public Schools.
Plaintiff's Complaint states that he alleged discrimination and filed charges with the Equal Employment Opportunity Commission on July 31, 1997, and that he received his "Notice-of-Right-to-Sue" letter on May 18, 1998. (Pl.'s Compl. ¶ 9) The Complaint states that he was denied an interview and given no reason for his "non selection." (Pl.'s Compl. ¶ 10(D)) On September 14, 1998, Defendant answered the complaint and asserted twenty separate defenses. In her "Thirteenth Separate Defense," Defendant claims that she hired a "more qualified applicant," and in her "Fourteenth Separate Defense," she alleges that the person she hired as the science supervisor was also a member of the class protected by the ADEA. (Def.'s Answer ¶ 10)
Plaintiff made this application for appointment of counsel by letter dated August 20, 1998.
A plaintiff in a civil suit has neither a constitutional nor a statutory right to counsel. A court, however, has the discretionary authority to appoint counsel to represent an indigent plaintiff under 28 U.S.C. § 1915 (d). See Ray v. Robinson, 640 F.2d 474, 477 (3d Cir. 1981). When deciding whether to appoint counsel under Section 1915, the Court must be persuaded that the plaintiff's claim has some merit in law and fact. See Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993). If it finds the plaintiff's claim has merit, the Court must then weigh a variety of factors to decide whether counsel should be appointed.
According to Tabron, the district court has broad discretion in deciding whether to grant a motion for appointment of counsel, pursuant to 28 U.S.C. § 1915 (d). See Tabron, 6 F.3d at 153. As a threshold matter, the Tabron guidelines state that the case must have arguable legal and factual merit. See id. at 155. If the court finds that the indigent plaintiff's claim has arguable merit in law and fact, the court then examines a number of additional factors such as the plaintiff's ability to present the case, the complexity or degree of difficulty of the legal issues involved, the degree to which factual investigation will be required and the ability of the plaintiff to pursue such investigation, and the extent to which the case will turn on credibility determinations and experts. See id. at 156. Finally, the court should consider any factors weighing against appointing counsel, the limited supply of competent lawyers willing to undertake such representation without compensation, and the value of lawyers' time. See id. at 157.
The Court must now determine whether Plaintiff's claim has legal and factual merit. Plaintiff alleges that he was discriminated against because he was 59 years old at the time he applied to be the science supervisor for the Millburn Township Public Schools. Defendant on the other hand asserts that she hired a more qualified individual, one who was also a member of the over-40 years of age protected class of the ADEA.
Analysis of age discrimination cases tracks that of Title VII cases because the ADEA and Title VII are similar in language and purpose. See Barber v. CSX Distrib. Servs., 68 F.3d 694, 698 (3d Cir. 1995). Black-letter law of employment discrimination states that to assert a prima facie case a plaintiff must make four showings: (1) he is a member of the protected class, (2) he "applied for and was denied the job," (3) although qualified, he was rejected, and (4) defendant filled the job with an individual significantly younger than plaintiff or continued seeking applications from those with similar qualifications as plaintiff. See id.; see also Bray v. Marriot Hotels, 110 F.3d 986, 989- 90 (3d Cir. 1997).
If plaintiff makes this initial showing, the law creates a presumption of discrimination. See Barber, 68 F.3d at 698. The burden of production then shifts to the defendant to articulate some legitimate, non-discriminatory reason for the failure to hire. See id.; Bray, 110 F.3d at 990. If the defendant employer meets this challenge and offers a valid explanation, the plaintiff must then show that the proffered reason was nothing more than pretext to unlawful discrimination. See id.; Bray, 110 F.3d at 990.
In this case, Plaintiff alleges that he was 59 years of age at the time he applied to defendant's school system. The ADEA protects those who are over 40 years of age. See 29 U.S.C. § 631 (Supp. 1998). Plaintiff thus satisfies the first prong of his prima facie showing. Plaintiff also meets the second prong of his prima facie case because he was not hired as the science supervisor; indeed Defendant admits that she did not hire Plaintiff for the position. (Def.'s Answer ¶ 10)
It is not clear, however, that Plaintiff was qualified for the position for which he applied. Plaintiff attaches to his Complaint a letter that appears to be the rejection letter he received from Defendant. It states that Plaintiff "obviously [has] many of the skills and talents necessary for the position . . . ." The letter does not state, however, that Plaintiff possesses all the qualifications necessary of a science supervisor. It is questionable, therefore, whether Plaintiff satisfies the third prong of his prima facie case.
Finally, in order to infer age discrimination Plaintiff must show that Defendant filled the position with someone significantly younger than Plaintiff or continued to seek applicants for the job. In her answer, Defendant states only that the position was filled with one who "is also a member of the protected class." This does not help her defense because the person hired as science supervisor might be up to nineteen years younger than Plaintiff.
In Barber v. CSX Distribution Services, the Third Circuit instructed that age discrimination against an unsuccessful job applicant can occur even when the person actually hired is over 40 years of age. See Barber, 68 F.3d at 699. Furthermore, the court held that there is no magical formula for determining if there has been age discrimination, but surveyed the case law and found that a nine year age difference between successful and unsuccessful job applicants can give rise to an inference of discrimination. See id. (citing Healey v. New York Life Ins. Co., 860 F.2d 1209 (3d Cir. 1988)). On the facts before the court in Barber, the court ultimately held that an eight year difference could support an inference of discrimination.
In the case before this Court, Plaintiff makes a bare assertion that there was age discrimination and offers not even an estimate as to the age of the hired science supervisor. On the other hand, Defendant's allegation that she hired a man or woman over 40 years of age does not exculpate her from possible liability. It is thus unclear whether plaintiff satisfies the fourth prong of his prima facie case.
Considering that Plaintiff may not satisfy prong three or prong four of his prima facie case, he may not have satisfied his burden of production. Failure to satisfy prong three or four, alone or together, would cast doubt on the legal and factual merit of Plaintiff's claim of discrimination. See Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993). Thus, Plaintiff has not made a prima facie case. Although not explicitly stated in Tabron, our analysis could end here and the Court could deny Plaintiff's application.
In order to go forward with the analysis, the Court must assume that Plaintiff establishes a prima facie case. As discussed supra, Tabron instructs that if Plaintiff shows his case has legal and factual merit the Court must then consider additional factors in deciding whether or not to appoint counsel. Even if Plaintiff has established his prima facie case, the additional Tabron factors do not enure to the Plaintiff.
Again, to reach this point in the analysis, the Court must assume that the third prong of the prima facie case is satisfied--Plaintiff must have been qualified for the position as science supervisor. If so, then Plaintiff presumably was qualified not only to teach science, but to supervise other science teachers and students. As such, Plaintiff must presumably also understand English, be literate and educated, and not be in prison. Cf. Tabron v. Grace, 6 F.3d at 156. Therefore, Plaintiff should have little difficulty presenting his ADEA case. An ADEA case is not complex, as once a plaintiff satisfies the initial prima facie showing, the defendant attempts to rebut the presumption of discrimination. Finally, a plaintiff is offered an opportunity to disprove the defendant's proffered explanations.
Furthermore, there is likely little need for an expert witness in making Plaintiff's prima facie showing that the candidate for the job was significantly younger than Plaintiff. If Defendant rebuts Plaintiff's prima facie case, an expert is likely not needed to show that the proffered reason for the employment decision was a mere subterfuge.
In summary, the Court is confident that Plaintiff can manage his case without the assistance of counsel. As such, the appointment of counsel is not appropriate, and the Plaintiff's motion is denied.
For the reasons stated above, Plaintiff's application for appointment of counsel is denied. An appropriate Order follows.
cc: Hon. William H. Walls
JOEL A. PISANO, UNITED STATES MAGISTRATE JUDGE
Before the Court is Plaintiff's application for appointment of counsel. Defendant has not filed opposition, and the Court decides the matter without oral argument pursuant to Rule 78 of the Federal Rules of Civil Procedure. For the reasons set forth in the accompanying Opinion, Plaintiff's application is
JOEL A. PISANO UNITED STATES MAGISTRATE JUDGE
cc: Hon. William H. Walls
© 2000 VersusLaw Inc.