Mozelle Jenkins appeals from a judgment of the United States District Court for the Southern District of New York (Charles E. Stewart, Judge) dismissing, after trial, her pro se complaint seeking relief for violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. (1976).
Kaufman, Newman and Davis,*fn* Circuit Judges.
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (1976), proscribes employment discrimination based on race, color, religion, sex or national origin. District courts are empowered to appoint counsel if requested by a Title VII pro se plaintiff. 42 U.S.C. § 2000e-5(f) (1976).*fn1 Although a judge is not obligated to designate an attorney, the mandate that due consideration be given to the need for a lawyer is evidenced by the language permitting appointment "in such circumstances as the court may deem just." Id. In this case, we are presented with a record which fails to assure us that the district court exercised its discretion on this question and, accordingly, we remand to the trial court. Before elaborating the legal considerations on which our decision is grounded, we describe the facts which have bearing on our conclusion.
Mozelle Jenkins worked as a clerk for Chemical Bank in New York City from 1967 until October 4, 1977 when her employment was terminated. The Bank asserted she refused to report back to her regular position after temporarily replacing another worker whose duties were less demanding. In addition, Ms. Jenkins was denied unemployment compensation because she had been discharged for misconduct. The appellant disputed these explanations and filed a charge with the Equal Employment Opportunity Commission (hereinafter "EEOC"), claiming her termination was the result of race and sex discrimination. The EEOC dismissed the charge, finding no reasonable cause for believing Ms. Jenkins's allegations. She, accordingly, was notified of her right to sue her former employer in federal court. The notice advised, "If you cannot afford or have been unable to obtain a lawyer to represent you, you should be aware that the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(f)(1) permits the U.S. District Court having jurisdiction in your case to appoint a lawyer to represent you."
Ms. Jenkins initiated this action on May 14, 1979. Shortly after being served with an answer, she sent a letter to the court requesting counsel be appointed. Two weeks later, on July 26, 1979, she filed a motion to the same end. There was no response to her application until October 3, 1979. On that date, Judge Stewart's law clerk wrote to Ms. Jenkins stating, "Unfortunately, the Court does not order lawyers to represent indigent clients in civil cases, so we cannot grant your request. However, you may proceed with the case on your own, and the Court will take into account the fact that you are not represented by counsel."
On November 7, 1979, a pre-trial conference was held at which it appears Ms. Jenkins's legal representation was discussed. Chemical Bank's counsel stated, in a letter describing the meeting, "If Ms. Jenkins does not retain counsel within two weeks, the Court, in its discretion, will decide whether or not to appoint counsel." Appellant Jenkins responded to that communication by denying the Bank's claims she had not searched diligently for private counsel. In a later affidavit, dated December 15, 1979, she stated she could not afford an attorney and gave the name of one lawyer she had consulted. Chemical Bank replied by writing to the court vigorously opposing any appointment of counsel.
In January 1980, Judge Stewart's law clerk again wrote to Ms. Jenkins concerning her "request for counsel. We regret that our attempts to assist you have been unsuccessful. If you wish to continue to try to find legal assistance on your own, I have enclosed a list of several attorneys who handle cases such as yours." Appellant replied several days later, again insisting she was indigent and needed a lawyer.
There are references to Ms. Jenkins's requests on two more occasions. A September 1980 affidavit by counsel for Chemical Bank refers to Ms. Jenkins's attempt to delay a deposition until after she had procured an attorney. In a sworn statement dated October 20, 1980, appellant reiterated her need for professional assistance.
Ms. Jenkins's motion for appointment of counsel was never formally denied, and there is nothing on the record to indicate with certainty that Judge Stewart exercised his discretion pursuant to Title VII, 42 U.S.C. § 2000e-5(f)(1) (1976). Instead, the uncertain legal status of the request continued throughout the pre-trial period. In January 1981 a three-day non-jury trial was conducted at which Ms. Jenkins appeared without legal representation. The judge found no support for the claim she was terminated because of discrimination based on race or sex, and dismissed her complaint. Ms. Jenkins now appeals on the ground that Judge Stewart abused his discretion in failing to appoint counsel.
42 U.S.C. § 2000e-5(f)(1) provides in pertinent part:
Upon application by the complainant [in a Title VII action] and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the ...