On appeal from judgment on a jury verdict in favor of the defendant in the United States District Court for the Southern District of New York, John E. Sprizzo, J., plaintiff-appellant moves for appointment of appellate counsel; defendant-appellee cross-moves to dismiss the appeal. The motion and cross-motion are denied.
Oakes, Chief Judge, Newman, Circuit Judge, and Leval, District Judge.*fn*
This is a motion by the pro se plaintiff-appellant Bennie Cooper for appointment of appellate counsel, coupled with a motion by the defendant-appellee A. Sargenti Co., Inc. for dismissal of the appeal.
Although motions by indigents for appointment of appellate counsel are generally adjudicated in this court by conclusory endorsement, we write briefly on the subject to correct misunderstandings that may have arisen in the district courts of some of our earlier opinions concerning the related issue of appointment of trial counsel.
The complaint alleged that plaintiff's discharge from his job resulted from the employer's discrimination based on race and age. Stipulation showed that Cooper (who is black and 61 years old at the time of discharge) had a substantial record of absenteeism; in June of 1984 his employer, the defendant, had instituted arbitration proceedings under the collective bargaining agreement seeking authorization to discharge him. The arbitrator ruled that "although [the employer] may have had the right to dismiss Cooper at this time, [the employer] would agree to give Cooper another chance to show that he could be a satisfactory employee; ... the dismissal request shall be held in abeyance and Cooper shall be regarded as warned that his conduct and attendance shall be satisfactory and that the only reason for an absence shall be for a personal compelling and unavoidable circumstance, and regardless if the reason for an absence may be compelling and unavoidable, it must not occur frequently." Jt. PTO, p. 7, para. 9.
On December 10 of the same year Cooper phoned in that because of the death of his mother-in-law, he would not be at work. The governing rules of the collective bargaining agreement allowed an employee three days for a family bereavement. Cooper, however, did not return to work for 18 days. On December 18, the employer sent him a telegram saying, "You have not worked since Friday December 7. We have not heard from you. If we do not hear from you by Friday December 21, with a valid reason for your absence, we will proceed to commence termination of your employment," In January, the company instituted arbitration for authorization to terminate plaintiff. On January 9, 1985 the arbitrator ruled that the company had good cause for dismissal. On January 14, 1985, Cooper was dismissed.
Trial was conducted before a jury by Judge John E. Sprizzo, Cooper, who was represented by counsel, sought to prove that his discharge resulted from race bias and age discrimination on the part of his boss Robert Sargenti. The trial turned primarily on issues of credibility. Plaintiff testified that Sargenti had frequently demeaned him by racial slurs and insults. Sargenti denied this. Defendant called other employees who denied ever having heard such slurs. Defendant also proved that plaintiff had never complained of racial insults to coworkers or union representatives and indeed had not even made such complaints to the arbitrator at his discharge hearing.
To show a nondiscriminatory reason for the discharge, defendant proved Cooper's frequent absenteeism. Defendant also showed that the problems caused by plaintiff's frequent absences were aggravated by his habitual failure, in violation of company rules, to call the employer at 7:00 a.m. to advise that he would be absent. This repeatedly left the company unprepared to replace him. During his extended unauthorized absence in December 1984 on the occasion of the death of his mother-in-law, he failed to communicate with the company to advise when he would return. Plaintiff testified that he had tried to telephone but the circuits were busy. When asked whether he ever tried to call at 7:00 a.m. (the appropriate time for such a call), he said no, explaining "I wanted to call at that time, but I was busy, you know, dealing with my wife and my father-in-law. . . . [My] father-in-law, he had to have pills. . . and I had to go to the drugstore and things to that effect for him." (Tr. 135.) The company also offered evidence that on one occasion when plaintiff was reprimanded for loafing and distracting other employees, he menaced his boss with a knife.
Upon all the evidence, it is not surprising that the jury discredited the plaintiff's contentions and found for the defendant.
Plaintiff's Application for Appointment of Counsel
In recent years, we have twice discussed the standards for appointment of free counsel to indigent claimants in civil cases. In Jenkins v Chemical Bank, 721 F.2d 876 (2d Cir. 1983), and Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986), we remanded to the district court for further consideration whether requests of indigents for counsel should be honored. Jenkins was, like this, a case of alleged employment discrimination. The applicable statute provides that "in such circumstances as the court may deem just, the court may appoint an attorney." 42 U.S.C. § 2000e-5 (1976). The trial court had declined to appoint counsel upon plaintiff's application. Trial resulted in a defendant's verdict. On appeal, we noted that a district court exercises substantial "discretion," subject to the requirement that it be "guided by sound legal principles." 721 F.2d at 879. We stated that the criteria to be used in making the decision included the merits of plaintiff's case, the plaintiff's ability to pay for private counsel, his efforts to obtain a lawyer, the availability of counsel, and the plaintiff's ability to gather the facts and deal with the issues if unassisted by counsel. The factor which commanded the most attention in the brief discussion was the merits. We noted that an attorney need not be appointed "in every case which survives a motion to dismiss" and suggested that a negative EEOC determination, coupled "with potentially frivolous rebuttals by the plaintiff, would militate against appointment of a lawyer."
In Hodge, we revisited the issue in the context of a very similar statutory authorization applicable to civil actions generally. It provides that "[The] court may request an attorney to represent any [indigent] person unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious." 28 U.S.C. § 1915(d). After trial resulting in a defendant's verdict, plaintiff appealed based on the trial court's refusal to appoint counsel. Our discussion of the applicable criteria was quite similar to our review in Jenkins. Citing with approval the Seventh Circuit's formulation in Maclin v Freake, 650 F.2d 885 (7th Cir. 1981), we stressed the importance of the apparent merits of the indigent's claim. "Even where the claim is not frivolous, counsel is often unwarranted where the indigent's chances of success are extremely slim." We cautioned that this requirement "must be taken seriously. If mere bald assertions by an indigent, which technically put a fact in issue and suffice to avert summary judgment, required appointment of an attorney under § 1915(d), the demand for such representation could be overwhelming." 842 F.2d at 60. We therefore advised that the district judge "should first determine whether the indigent's position was likely to be of substance." Only "if the claim meets this threshold requirement, ...