United States District Court, D. New Jersey
August 24, 2005.
RAMONITA GONZALEZ, Plaintiff,
PASSAIC COUNTY PROBATION, MIKE COSTABILE, DOROTHY HOWELL, CAROL KOPACZ, JOHN KRIEGER, MARY STATELY, PROBATION ASSOCIATION OF NEW JERSEY, PETER TORTORETO and GEORGE CHRISTIE, Defendants.
The opinion of the court was delivered by: JOHN BISSELL, Chief Judge, District
This matter comes before the Court on an application by the
Plaintiff for the appointment of pro bono counsel pursuant to
28 U.S.C. § 1915. This Court has jurisdiction pursuant to
42 U.S.C. 2000e-5.
Plaintiff Ramonita Gonzalez ("Plaintiff") is a pro se plaintiff
who filed the instant Complaint on June 25, 2004 against the
Passaic County Probation, Mike Costabile, Dorothy Howell, Carol
Kopacz, John Krieger, Mary Stately, the Probation Association of
New Jersey, Peter Tortoreto and George Christie. The Complaint
alleges employment discrimination pursuant to Title VII of the
Civil Rights Act of 1964. See Compl. at ¶ 1.
On November 9, 2004, Plaintiff filed an application for pro
bono counsel. Thereafter, on January 24, 2005, the Probation
Association of New Jersey, George P. Christie and Peter Tortoreto
filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6).
The remaining Defendants filed an Answer on March 21, 2005.
Plaintiff was employed as a Probation Officer in the Child Support Unit of the Passaic Vicinage. See Pl.'s Ex. E at E-3.
On March 31, 2003, the Passaic Vicinage issued a Preliminary
Notice of Disciplinary Action to the Plaintiff alleging conduct
unbecoming a public employee and other sufficient cause in
violation of N.J.A.C. 4A:2-2.3(a)(6),(11). Id. at E-2. This
disciplinary action stemmed from allegations that the Plaintiff
"inappropriately involved herself in her child support case
thereby engaging in conduct unbecoming a pubic employee and
violating the Code of Conduct." Id. at E-3. According to the
Recommended Decision of Hearing Officer Nancy M. Mahony, Esq.,
("Hearing Officer Mahony") Plaintiff was transferred to the
Passaic Vicinage Child Support Unit in July of 2002. See id.
at E-4. At that time, the Plaintiff was told that her own
personal child support case against Mr. Curvey Thompson ("Mr.
Thompson") should be transferred to Bergen County to avoid any
conflict while she worked in the Passaic Vicinage of the Child
Support Unit. See id. This transfer, however, did not occur
until November of 2002.*fn1 See id.
Prior to the transfer, Carolyn Gibbons ("Ms. Gibbons") was
assigned as an Investigator to the Plaintiff's case. See id.
In November 2002, a fax was sent from the Passaic Child Support
Unit under the name of Ms. Gibbons but in the Plaintiff's
handwriting. See id. This fax was sent to Mr. Thompson's employer to
enforce a wage garnishment in the Plaintiff's child support case.
Hearing Officer Mahony found that "on November 12, 2002, Ms.
Gonzalez faxed the wage garnishment to the payroll department at
[Mr. Thompson's employer] with Ms. Gibbons' knowledge and
permission." Pl.'s Ex. E at E-10. Yet, Hearing Officer Mahony
also concluded that Plaintiff's "actions were conduct unbecoming
a public employee and exhibited actual or apparent impropriety."
Id. at E-12.*fn2 As a result, Hearing Officer Mahony
recommended that the Plaintiff receive a six month suspension
rather than termination. See id. at E-13.
Plaintiff alleges that after filing her appeal but prior to the
Recommended Decision of Hearing Officer Mahony, she "was
subjected to on-going acts of harassment which created a hostile
work environment." N.J. Charge of Discrimination, attached to
Compl. Further, Plaintiff charges that her "duties were reduced
and/or changed. I was issued write-ups for lateness." Id.
Plaintiff alleges that non-Hispanic, male workers who also
violated state codes were "issued less discipline." Id.
Plaintiff stated: "I believe that I have been discriminated
against because of my sex (Female), national origin (Hispanic) and retaliation in violation of Title VII of the Civil Rights Act
of 1965, as amended." Id.
Plaintiff specifically charges that the Probation Association
of New Jersey did not provide fair representation. See Compl.,
Attach. at 1. According to Plaintiff, because the Probation
Association of New Jersey decided not to represent her, she was
forced to hire her own private attorney to represent her during
her appeal and hearing. See id. She further charges that
Defendants George P. Christie and Peter Tortoreto informed her
"that I should resign with good standing because I had no chance
of saving my employment." Id. Plaintiff also claims that she
has been assigned "an all-Spanish caseload" in spite of the fact
that her supervisor is aware that while she is of Hispanic
origin, her "first and only language is English." Pl.'s Feb. 16,
2005 Letter at ¶ 4. For these reasons, Plaintiff filed the
instant action in this Court.
While Plaintiff secured the services of an attorney for her
disciplinary hearing and subsequent internal appeal, she now
claims that she can no longer afford or secure the services of an
attorney. See Pl.'s Appl. For Pro Bono Counsel, ¶ 3. According
to Plaintiff, she cannot afford an attorney to represent her in
the instant action. See id. Therefore, Plaintiff filed the
instant application for the appointment of pro bono counsel. The
Court will now address that application. DISCUSSION
I. Standard for the Appointment of Pro Bono Counsel to an
Indigent Civil Litigant
An indigent civil litigant does not possess either a
constitutional or a statutory right to appointed counsel. See,
e.g., Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997);
Montgomery v. Pinchak, 294 F.3d 492, 498-499 (3d Cir. 2002).
Nevertheless, district courts have been granted statutory
authority to request appointed counsel for indigent civil
litigants. See 28 U.S.C. § 1915(e)(1) (providing that "[t]he
court may request an attorney to represent any person unable to
afford counsel"). The Court of Appeals for the Third Circuit has
interpreted § 1915 as affording district courts "broad
discretion" to determine whether the appointment of counsel in a
civil case would be appropriate. See Tabron v. Grace,
6 F.3d 147, 153 (3d Cir. 1993). Moreover, the decision to appoint
counsel may be made at any point in the litigation, and may be
made by a district court sua sponte. See id. at 156.
While this Court has broad discretion in determining whether to
appoint counsel in a civil case, the Third Circuit has developed
a list of criteria to aid a district court when weighing the
appointment of counsel for indigent civil litigants.*fn3
See id. "As a threshold matter, a district court must assess whether the claimant's case has some arguable merit
in fact and law." Montgomery, 294 F.3d at 498-499 (citing
Tabron, 6 F.3d at 155 and Parham, 126 F.3d at 457).
The Third Circuit identified a number of factors that a
district court should consider when assessing a claimant's
request for counsel where the claimant has overcome the threshold
hurdle. See Montgomery, 294 F.3d at 499. These factors
include: (1) the plaintiff's ability to present his or her own
case; (2) the difficulty of the particular legal issues; (3) the
degree to which factual investigation will be necessary and the
ability of the plaintiff to pursue investigation; (4) the
plaintiff's capacity to retain counsel on his or her own behalf;
(5) the extent to which a case is likely to turn on credibility
determinations; and (6) whether the case will require testimony
from expert witnesses. See, e.g., Montgomery,
294 F.3d at 499; Tabron, 6 F.3d at 155-57. "This list of factors is not
exhaustive, but should serve as a guidepost for the district
courts." Parham, 126 F.3d at 457 (citing Tabron,
6 F.3d at 155). Furthermore, the Third Circuit has cautioned that district
courts "should exercise care in appointing counsel because
volunteer lawyer time is a precious commodity and should not be
wasted on frivolous cases." Montgomery, 294 F.3d at 499.
II. Analysis of the Relevant Factors as Applied to the Facts
of this Case
Before this Court may exercise its discretion in favor of
appointment, "it must first appear that the claim has some merit
in fact and law." Tabron, 6 F.3d at 155 (quoting Maclin v.
Freake, 650 F.2d 885, 887 (7th Cir. 1981) (per curiam)). Hence,
this Court must address whether Plaintiff's claim has some merit
in fact and law pursuant to Title VII of the Civil Rights Act of
1964 ("Title VII").
A. The Elements of a Prima Facie Case Under Title VII
Title VII provides, in relevant part, that it "shall be an
unlawful employment practice for an employer (1) to fail or
refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual's race, color, religion, sex, or
national origin. . . ." 42 U.S.C. § 2000e-2(a).
It is well established that Title VII claims are to be
evaluated according to the burden-shifting framework established
by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) and then elaborated in Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 253 n. 6 (1981). As described
by the Court in Burdine:
First, the plaintiff has the burden of proving by a preponderance of the evidence a prima facie case
of discrimination. Second, if the plaintiff succeeds
in proving a prima facie case, the burden [of
production] shifts to the defendant to articulate
some legitimate, non-discriminatory reason for the
[adverse employment decision]. Third, should the
defendant carry this burden, the plaintiff must then
have an opportunity to prove by a preponderance of
the evidence that legitimate reasons offered by the
defendant were not his true reasons, but were a
pretext for discrimination.
Burdine, 450 U.S. at 252-53. It is worth accenting that
although the burden of production may shift under the McDonnell
Douglas analysis, the Title VII plaintiff always bears the
ultimate burden of persuasion establishing intentional
discrimination. See United States Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711
, 716 (1983); Burdine,
450 U.S. at 256.
The precise elements of a prima facie case under Title VII may
vary according to the particular facts of the case. See
McDonnell Douglas, 411 U.S. at 802 ("The facts necessarily will
vary in Title VII cases, and the specification above of the prima
facie case required from [plaintiff] is not necessarily
applicable in every respect to differing factual situations.").
However, a Title VII plaintiff may establish generally a prima
facie case of employment discrimination by showing that: (1) she
is a member of a protected class, (2) she was qualified for a
position, and (3) she suffered an adverse employment decision
(termination, constructive discharge, failure to receive promotion, etc.) "under circumstances that give rise to an
inference of unlawful discrimination." Burdine,
450 U.S. at 253.*fn4
Should the employee establish a prima facie case, the burden of
production shifts to the employer to articulate a legitimate,
non-discriminatory reason for the adverse employment decision.
"An employer need not prove, however, that the proffered reasons
actually motivated the [adverse employment] decision."
Stanziale, 200 F.3d at 105; see Fuentes v. Perskie,
32 F.3d 759, 763 (3d Cir. 1994). Finally, if the defendant successfully
articulates a non-discriminatory reason, the burden of production
returns to the plaintiff to prove that the proffered reasons were
merely pretexts to discriminate.
B. The Merits of Plaintiff's Title VII Claims
In this case, the Plaintiff has submitted no direct evidence of
racial, national origin or gender discrimination, and therefore,
she must proceed according to the McDonnell Douglas burden-shifting scheme. The prima facie case under the McDonnell
Douglas pretext framework is not intended to be onerous. See
Burdine, 450 U.S. at 253.
It is undisputed that Plaintiff, as an Hispanic female, is a
member of a protected class. Furthermore, Plaintiff has provided
adequate documentation supporting the fact that she was qualified
for her position, including numerous "Employee Performance
Appraisal" forms indicating her abilities as average if not
slightly above average. See Pl.'s Ex. L. Therefore, there is
adequate evidence to show that there is some merit in law or fact
as to the second prong of the prima facie case.*fn5
Lastly, Plaintiff has also provided evidence that she suffered
an adverse employment decision. Plaintiff submitted to the Court
a document showing that her supervisor specifically reduced her
responsibilities. See Pl.'s Ex. K at 1. Furthermore, Plaintiff
has presented evidence of discipline brought against her resulting in a sixth-month suspension from
work. See Pl.'s Ex. E. Notably, Plaintiff claims that she has
been assigned "an all-Spanish caseload" in spite of the fact that
while she is of Hispanic origin, her "first and only language is
English." Pl.'s Feb. 16, 2005 Letter at ¶ 4. Plaintiff further
states the she has advised her supervisor "on several occasions"
that she is "not a bilingual worker." Id. These actions lend
support to the conclusion that there is some merit in law or fact
as to the third prong of the prima facie case under Title VII.
Hence, pursuant to the Tabron test, this Court finds that
there does appear that Plaintiff's claim has some merit in fact
and law. See Tabron, 6 F.3d at 155. Therefore, the Plaintiff
has overcome the required Tabron threshold hurdle, and this
Court will proceed to analyze in terms of the relevant factors
set forth by the Third Circuit in Tabron.
C. The Six Tabron Factors
1. The Plaintiff's Ability to Present Her Own Case
According to the Third Circuit, "the most significant of
Tabron's post-threshold factors is the plaintiff's ability to
present his or her case." Montgomery, 294 F.3d at 501. Further,
the Third Circuit has identified numerous points that courts
should consider in determining a plaintiff's ability to present
her own case, including: "the plaintiff's education, literacy,
prior work experience, and prior litigation experience, along with a plaintiff's ability to understand English . . . [and] the
restraints placed upon [a prisoner plaintiff] by confinement."
Id. Moreover, while these factors are not always determinative,
they "should be considered in each meritorious case". Parham,
126 F.3d at 459.
In this case, Plaintiff is literate, and, as she stated, her
"first and only language is English." Pl.'s Feb. 16, 2005 Letter
at ¶ 4. Plaintiff's level of education is not clear from the
papers submitted to the Court. Based on the submissions to the
Court, it is clear that Plaintiff has been employed as a
Probation Officer for at least two years. See Pl.'s Ex. E.
Furthermore, according to one of Plaintiff's "Employee
Performance Appraisal" forms, she is "computer literate and has a
strong knowledge of computer fundamentals, as well as, word
processing skills." See Pl.'s Ex. L, Evaluation by Sheila
Smith, at 13. Plaintiff's capabilities in this area have also
been demonstrated through her numerous writings to this Court and
to her adversaries. Plaintiff has filed and responded to motions,
indicating her basic capabilities and literacy. See
Montgomery, 294 F.3d at 501 ("[T]his Court has determined that
the ability to file and respond to motions does indicate that a
plaintiff has some legal knowledge and is literate."). It should
be noted, however, that "this fact alone does not conclusively
establish that [a Plaintiff] was able to present his own case."
Parham, 126 F.3d at 459 (finding that a prisoner's lack of legal experience
and the complex discovery rules prevented him from presenting an
While the Plaintiff is literate, there is no evidence that she
is capable of handling the complexities of a Title VII suit. This
Court does not have any evidence of Plaintiff's ability to
maneuver through the procedural rules and requirements. In fact,
in Defendants' Probation Association of New Jersey, George P.
Christie and Peter Tortoreto's motion to dismiss, they state that
Plaintiff's submissions are "entirely and completely procedurally
defective and invalid." Defs.' Reply at 1. They further state
that Plaintiff's Complaint was "handwritten, factually deficient
and poorly pled." Defs.' Br. at 1.
It is clear that while Plaintiff is literate and capable of
corresponding with the Court, she is unable to follow the
required procedural and legal requirements called for in a
complex Title VII suit. For that reason, Plaintiff lacks the
ability to adequately present her own case.
2. The Difficulty of the Particular Legal Issues
In analyzing the complexity of the legal issues for purposes of
appointing counsel, "courts must still look to the proof going
towards the ultimate issue and the discovery issues involved."
Parham, 126 F.3d at 459. As discussed previously, a Title VII
claim involves shifting burdens that may become complex. In cases such as this, it has been held that this shifting burden is
a complex legal issue that would be difficult for a pro se
plaintiff to maneuver. See, e.g., Antonmarchi v. Con Edison,
2005 WL 914382 (S.D.N.Y. 2005) (stating that where the action
involves allegations of unlawful discrimination and retaliation,
such actions present complex legal issues involving shifting
burdens of persuasion which will necessarily have to be addressed
at a trial); Mejia v. Stonecrest Management, Inc., 2004 WL
1077931 (S.D.N.Y. 2004) ("Furthermore, inasmuch as this is an
action in which the plaintiff alleges that he was a victim of
unlawful discrimination, complex legal issues involving shifting
burdens of persuasion will necessarily have to be addressed and
the record before the Court does not indicate that [the
plaintiff] possesses any particular knowledge or skill that would
enable him to analyze these issues and be prepared to meet the
burdens placed upon a plaintiff in an action based upon
allegations of unlawful discrimination."). Moreover, where the
record does not indicate that the plaintiff "possesses any
particular knowledge or skill that would enable him to analyze
these issues and be prepared to meet the burdens placed upon a
plaintiff in an action based upon allegations of unlawful
discrimination and retaliation" appointment of counsel is
appropriate. See Antonmarchi v. Con Edison, 2005 WL 914382
(S.D.N.Y. 2005). Hence, this case presents complex legal issues and the Plaintiff has not indicated that she possesses any
particular knowledge or skill that would enable her to analyze
these issues and be prepared to meet the burdens placed upon her.
It is also noteworthy that there are some potential legal
issues that Plaintiff may not have pleaded. Plaintiff submitted
evidence of injury while on the job, but does not address this in
her Complaint or correspondence with the Court. See Pl.'s Ex. J
(accident report and photographs). This would seem to support the
claim that Plaintiff is not fully capable of representing herself
and presenting all relevant legal issues.
3. The Degree to Which Factual Investigation Will Be
Necessary and the Ability of the Plaintiff to Pursue
The Third Circuit has stated that, where a person is confined
to prison and the circumstances of that confinement limit his or
her ability to conduct discovery, these facts lend great weight
to the decision to appoint pro bono counsel. See, e.g.,
Montgomery, 294 F.3d at 503; Tabron, 6 F.3d at 156. In this
case, Plaintiff is not imprisoned or confined in any way. Hence,
there is no evidence that Plaintiff is unable to pursue necessary
factual investigation. However, it should be noted that there
does not seem to be an overwhelming amount of necessary factual
discovery. Plaintiff was a party to the alleged actions from
which her claims stem and for that reason she has first-hand
knowledge of those events. Therefore, factual discovery does not seem to be an overwhelming burden on the
4. The Plaintiff's Capacity to Retain Counsel on Her Own
In this case, Plaintiff was able to secure the services of an
attorney for her disciplinary hearing. However, according to
Plaintiff, that attorney does not practice in federal court.
See Pl.'s Appl. For Pro Bono Counsel, ¶ 3. She also hired a
second attorney to represent her during her appeal within the
Probation Department. See id. However, Plaintiff states: "I
have spent all of my savings on my first attorney and now on this
second attorney who has my merit case appeal. I have no more
money to spend on an attorney. I am a single parent of two
medically need[y] children." Id. Plaintiff also states that she
went to several attorneys who refused to represent her because of
an alleged conflict of interest. See id.
Under similar circumstances, at least one court has granted pro
bono counsel where the plaintiff was once able to secure counsel
but was not economically able to continue that representation.
See Mejia v. Stonecrest Management, Inc., 2004 WL 1077931
(S.D.N.Y. 2004) (stating that the record indicated that the
plaintiff "once was able to secure the services of an attorney,"
but that now "he has advised the Court that he is no longer
economically able to do so", and holding "that appointment of
counsel, in the circumstances of this case, would be reasonable and appropriate" and "would more likely lead to a just
determination of the discrimination claim that he has made.").
This Court agrees with the Southern District of New York that
under the present circumstances the appointment of counsel would
more likely lead to a just determination of Plaintiff's
5. The Extent to Which a Case Is Likely to Turn on
When considering this factor, "courts should determine whether
the case was solely a swearing contest." Parham,
126 F.3d at 460. This case already has some indications of a swearing
contest. Plaintiff argues that some of her behavior, particularly
with respect to the fax sent to Mr. Thompson's employer to
garnish his wages, was at the direction of her supervisor, Ms.
Gibbons. Whereas, according to Hearing Officer Mahony, Ms.
Gibbons argued that she did not give the Plaintiff permission to
send the fax. See Pl.'s Ex. E at E-10. Hence, a swearing
contest has already begun. Therefore, this factor weighs in favor
of granting Plaintiff's motion for appointment of pro bono
6. Whether the Case Will Require Testimony from Expert
There is no evidence that this case will require testimony from
expert witnesses. Therefore, this factor alone does not weigh in
Plaintiff's favor. D. Plaintiff is Entitled to the Appointment of Pro Bono
The circumstances of this case indicate that four of the six
Tabron factors weigh in favor of the appointment of pro bono
counsel. The Third Circuit has instructed that "where a
plaintiff's case appears to have merit and most of the
aforementioned [Tabron] factors have been met, courts should
make every attempt to obtain counsel." Parham, 126 F at 461. In
this case, Plaintiff's claim appears to have merit and she has
met most of the Tabron factors weighing in favor of
appointment. Hence, based on the foregoing analysis, the
Plaintiff is entitled to the appointment of pro bono counsel.
IV. Defendants' Motions
Also before this Court are Defendants Probation Association of
New Jersey, George P. Christie and Peter Tortoreto's
("Defendants") motions to dismiss with prejudice pursuant to
It is recognized that pro se submissions "must be held to `less
stringent standards than formal pleadings drafted by lawyers.'"
Estelle v. Gamble, 429 U.S. 97, 106 (1976), reh'g denied,
429 U.S. 1066 (1977) (quoting Conley v. Gibson, 355 U.S. 41, 45-46
(1957)); see also Haines v. Kerner, 404 U.S. 519, 520,
reh'g denied, 405 U.S. 948 (1972); Lewis v. Attorney Gen. of
United States, 878 F.2d 714, 722 (3d Cir. 1989). When reviewing a pro se complaint, a court must assume that the plaintiff's
factual allegations are true and construe his/her claim
liberally. See, e.g., Neitzke, 490 U.S. at 330 n. 9;
Haines, 404 U.S. at 520; Roman, 904 F.2d at 197.
B. Defendants' Motion to Dismiss
The motion to dismiss in this case is based solely on the fact
that the pro se Plaintiff's Complaint was "handwritten, factually
deficient and poorly pled." Defs.' Br. at 1. The Defendants
however, do not acknowledge that this Complaint was a standard
form for pro se Plaintiffs to fill out (presumably by hand).
Moreover, in Defendants' Reply, they state: "Despite the fact
that she Plaintiff [sic] is representing herself in this matter
pro se, the Court should nevertheless not consider Plaintiff's
alleged opposition to Defendants' motion because it is entirely
and completely procedurally defective and invalid." Defs.' Reply
at 1. Defendants then proceed to cite the Local Civil Rule
requiring a brief and state that Plaintiff's opposition "consists
of several incoherent and self-serving letters from herself to
the Court." Id. The crux of Defendants' arguments in favor of
dismissal is that Plaintiff's Complaint and further court
submissions are procedurally invalid and incomplete.
The Court dismisses Defendants' motions without prejudice. Pro
bono counsel will be appointed pursuant to this Court's pro bono plan. Often, after such appointments, counsel seek leave
from the Court to file amended pleadings. Should that not be the
case here, these defense motions could be renewed. If an amended
complaint is filed, defendants are free to assert pre-answer
motions should they so chose.
For the foregoing reasons Plaintiff's application for
appointment of pro bono counsel is granted. Defendants Probation
Association of New Jersey, George P. Christie and Peter
Tortoreto's motion to dismiss with prejudice pursuant to
Fed.R.Civ.P. 12(b)(6) is DENIED, without prejudice.