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Bondarenko v. Hackensack University Medical Center

May 29, 2008

SERGEY BONDARENKO PLAINTIFF,
v.
HACKENSACK UNIVERSITY MEDICAL CENTER DEFENDANT.



The opinion of the court was delivered by: Esther Salas United States Magistrate Judge

OPINION AND ORDER

INTRODUCTION

Presently before this Court is an application by Plaintiff Sergey Bondarenko ("Plaintiff") for appointment of pro bono counsel pursuant to 28 U.S.C. § 1915(e)(1). (Docket Entry # 8-4). For the reasons set forth below, Plaintiff's application is DENIED.

BACKGROUND

On August 9, 2007 Plaintiff submitted a Complaint, brought pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII") alleging that Hackensack University Medical Center ("Defendant") discriminated against him because of his national origin as a Russian immigrant. Specifically, Plaintiff alleges that since he was hired as a security officer in 2002 he has applied for several promotions and all of them have been denied. Further, he alleges that he has the requisite qualifications to fill the positions for which he applied but was denied advancement because of his national origin and lack of connections to Defendant's human resources department. On February 4, 2008, Plaintiff filed the present application for the appointment of pro bono counsel. (Docket Entry # 8-4).

DISCUSSION

A. Legal Standard

A civil litigant does not enjoy a constitutional or statutory right to appointed counsel. Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002) (citing Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997)). However, district courts retain statutory authority to request the appointment of pro bono counsel for indigent civil litigants. 28 U.S.C. § 1915(e)(1). While Congress has empowered district courts to "request" counsel for civil litigants, however, courts cannot force an unwilling attorney to serve as counsel. Id. (citing 28 U.S.C. § 1915(e)(1)); see also Christy v. Robinson, 216 F.Supp.2d 398, 406, n. 16 (D.N.J. 2002) (citing Mallard v. U.S. Dist. Court for S. Dist. of Iowa, 490 U.S. 296, 301 (1989)). Finally, the decision to appoint counsel may be made at any point in the litigation and may be made by a district court sua sponte. Tabron v. Grace, 6 F.3d 147, 156 (3d Cir. 1993).

When exercising its discretion under § 1915, this Court must follow the analytical framework set forth in a trilogy of Third Circuit decisions. Tabron,6 F.3d at 153; Parham v. Johnson, 126 F.3d 454 (3d Cir. 1997); Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002). This framework begins with a threshold assessment of the merit of the claimant's case. Montgomery, 294 F.3d at 499. After finding "some arguable merit in fact and law," district courts in the Third Circuit must weigh several Tabron post-threshold factors. Id. at 500. These factors -- designed to ensure that courts do not appoint counsel in frivolous cases -- include: 1) the plaintiff's ability to present his 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 an investigation; 4) the extent to which a case is likely to turn on credibility determinations; 5) whether the case will require testimony from expert witnesses; and 6) the plaintiff's capacity to retain counsel on his own behalf. Id. (citing Tabron, 6 F.3d at 155-57); see also Parham, 126 F.3d at 461 ("The Tabron factors will ensure that courts do not appoint counsel to frivolous cases.").

When weighing the Tabron post-threshold factors, district courts must remain mindful of certain considerations. First, the list is not exhaustive. Id. (citing Parham, 126 F.3d at 457 ("this list of factors is not exhaustive, but should serve as a guidepost for the district courts")). Next, "where a plaintiff's case appears to have merit and most of the aforementioned factors have been met, courts should make every attempt to obtain counsel." Parham, 126 F.3d at 461. Third, 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 (citing Parham, 126 F.3d at 458).

B. Application of the Tabron Factors

1. Threshold Analysis of Merit in Fact and Law

At the outset, this Court must assess whether Plaintiff's claim -- brought pursuant to Title VII of the Civil Rights Act of 1964 -- has "some arguable merit in fact and law." Tabron, 6 F.3d at 155. Title VII provides, in relevant part, that it "shall be an unlawful employment practice for an employer 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). To establish a prima facie case under Title VII, a plaintiff may either present direct evidence of discriminatory intent or may satisfy the four factors set forth in McDonnell Douglas v. Corp. v. Green, 411 U.S. 792, 802 (1973): 1) he is a member of a protected class; 2) he was qualified for the position; and 3) he suffered an adverse employment decision (i.e. termination or failure to receive a promotion) under circumstances that give rise to an inference of unlawful discrimination. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981); Gonzalez v. Passaic County Probation, No. 04-3001, 2005 U.S. Dist. LEXIS 18890 at *11 (D.N.J. August 24, 2005) (analyzing Title VII in the context of an application for pro bono counsel). Once the plaintiff establishes a prima facie case the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse employment action. If the defendant successfully articulates a non-discriminatory reason, the burden of production returns to the plaintiff to prove that the proffered reasons were a pretext to discriminate.

In this case, Plaintiff appears to have established the prima facie elements of a Title VII claim. As a Russian immigrant, Plaintiff is a member of a protected class. Further, Plaintiff has introduced documentation including his college transcript, a letter of recommendation, and several applications for promotion or transfer with positive comments about his work performance. (Docket Entry # 8-1). This documentation serves as sufficient evidence to satisfy the second prong of the prima facie case. Finally, Plaintiff has provided evidence that he was subject to an adverse employment action by being denied promotions on at least seven occasions for various positions within Defendant's organization. Each of these positions, moreover, was allegedly filled by a non-immigrant with less seniority and less education than Plaintiff. Given the above ...


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