Williams v. 24 Hour Fitness USA, Inc.
Filing
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ORDER DENYING PLAINTIFF'S REQUEST FOR APPOINTMENT OF COUNSEL re 3 - Signed by Judge BARRY M. KURREN on 12/30/2014. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Delano Williams served by first class mail at the address of record on December 30, 2014.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CIV. NO. 14-00560 BMK-NONE
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Plaintiff,
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vs.
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24 HOUR FITNESS USA, INC.
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Defendant.
______________________________ )
DELANO WILLIAMS,
ORDER DENYING PLAINTIFF’S
REQUEST FOR APPOINTMENT
OF COUNSEL
ORDER DENYING PLAINTIFF’S
REQUEST FOR APPOINTMENT OF COUNSEL
Before the Court is pro se Plaintiff Delano William’s (“Plaintiff”)
Request for Appointment of Counsel Under the Civil Rights Act of 1964; 42
U.S.C. § 2000e-5(f)(I)(B), filed on December 15, 2014 (“Motion”). (Doc. 3.) The
Court finds this matter suitable for disposition without a hearing pursuant to Rule
LR 7.2(d) of the Local Rules of Practice of the United States District Court for the
District of Hawaii. After careful consideration of the Motion and the relevant legal
authority, Plaintiff’s Motion is DENIED for the reasons set forth below.
BACKGROUND
On June 26, 2014, Plaintiff was terminated from his managerial
position at 24 Hour Fitness USA, Inc.’s, (“Defendant”), Windward, Oahu Club,
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after having worked with the company for nine years.1 (Doc. 1 at 4.) Plaintiff
maintains that his discharge stems from an incident that took place on May 20,
2014, between himself and a front desk service worker (“Employee”). (Id.)
On that day, Plaintiff confronted Employee, a female, who had been
insubordinate towards him for a period of time. (Id.) In this meeting, witnessed by
another female Service Manager, Plaintiff informed Employee about her attitude
and behavior towards him and asked her to explain what, if any, problem she may
have. (Id.) After their discussion, Plaintiff, in an attempt to “clear the air to start
fresh and resolve the issue,” extended his arms halfway towards Employee,
“stopped and wait[ed] for her to reciprocate back,” and when Employee met
Plaintiff halfway, Plaintiff hugged Employee in front of the Service Manager
witnessing the discussion. (Id.) It was later brought to Plaintiff’s attention that he
should not have hugged Employee. (Id.) After their meeting, Employee met
separately with the Service Manager. (Id.) Plaintiff was never approached or
consulted by the Service Manager, and therefore, Plaintiff was under the
assumption that everything had been resolved. (Id.)
The following day, Plaintiff left on vacation. (Id.) When he returned
to work, he was notified that Employee was uncomfortable with the May 20, 2014
hug, and Employee had filed a complaint against Plaintiff with Defendant’s
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It appears that Defendant has not yet been served with the Complaint in this action. A Summons was issued on
December 15, 2014, (see Doc. 2), but it does not appear from the docket that the Summons was served on
Defendant. Additionally, counsel has not yet made an appearance on behalf of Defendant in this case.
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Human Resources (“HR”) Department. (Id. at 4-5.)
On June 19, 2014, Plaintiff and Employee got into a verbal
altercation. (Id. at 5.) Defendant’s Club Manager, a male, spoke with Employee
and asked Plaintiff to step outside the building. (Id.) After their meeting, the Club
Manager spoke to Plaintiff about what had taken place and informed Plaintiff that
Employee called the police to file a complaint against him. (Id.) Later that
afternoon, Plaintiff was given a written final warning from the club’s HR
Representative, which Plaintiff refused to sign because it did not address
Employee’s insubordination towards him. (Id.)
On June 20, 2014, Plaintiff called one of Defendant’s HR
Representatives in San Diego, a female, and sought support on the written final
warning. (Doc. 1 at 5.) According to Plaintiff, the San Diego HR Representative
“sided with her HR staff on the decision made,” and after going back and forth
with the San Diego HR Representative, she hung up on Plaintiff. (Id.) Shortly
thereafter, the Club Manager notified Plaintiff that he was placed on administrative
leave. (Id.) On June 25, 2014, Plaintiff was asked to meet with the Club Manager
and Defendant’s District Manager. (Id.) The following day, Plaintiff’s
employment with Defendant was terminated. (Id.) Plaintiff alleges that the
District Manager decided to terminate Plaintiff’s employment following the two
incidents with Employee and the conversation with Defendant’s San Diego HR
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Representative. (Id.)
On or about July 11, 2014, Plaintiff filed charges with the Federal
Equal Employment Opportunity Commission (“EEOC”) regarding Defendant’s
alleged discriminatory conduct. (Doc. 1 at 7.) On September 17, 2014, the EEOC
closed its file on Plaintiff’s charge, having determined, based upon its
investigation, that
the EEOC is unable to conclude that the information obtained
establishes violations of the statutes. This does not certify that the
respondent is in compliance with the statutes. No finding is made as
to any other issues that might be construed as having been raised by
this charge.
(Doc. 1-1 at 4.) The EEOC also notified Plaintiff of his right to file suit following
its notice of dismissal. (Doc. 1-1 at 4.)
On December 15, 2014, Plaintiff filed this employment discrimination
action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq.,
alleging employment discrimination on the basis of gender, retaliation, and
wrongful termination. (See Doc. 1 at 4.) Plaintiff maintains that he was working
as a manager within a club “dominated by female employees,” and that Defendant
did not support him as manager, and instead, violated his civil rights “on different
levels.” (Doc. 1 at 5.) Plaintiff also maintains that his gender equality was
violated, and that he was retaliated against after seeking support from Defendant’s
San Diego HR Representative. (See Doc. 1 at 5.) Plaintiff alleges that as a result
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of these events, his membership at Defendant’s Fitness Clubs was revoked, and he
is unable to renew his lifetime membership that he previously paid $599.87 for.
(Doc. 1 at 6, Doc. 1-7 at 1.)
In the instant Motion, Plaintiff seeks the appointment of counsel
pursuant to 42 U.S.C. § 2000e-5(f)(1)(B).2 (Doc. 3 at 1.) Plaintiff maintains that
his claim is meritorious, he has made a reasonable diligent effort to obtain counsel,
and that he is unable to find an attorney willing to represent him on terms that he
can afford. (Doc. 3 at 1.) For the reasons discussed below, the Court DENIES
Plaintiff’s Request for the Appointment of Counsel.
DISCUSSION
There is no absolute right to counsel in civil proceedings. Hedges v.
Resolution Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994). A district court is not
obligated to appoint counsel in every employment discrimination case, but may do
so under “circumstances as the court may deem just.” Bradshaw v. Zoological
Soc’y of San Diego, 662 F.2d 1301, 1318 (9th Cir. 1981) (internal quotation marks
omitted). Under Title VII, the court should only appoint counsel under
“exceptional circumstances.” DeCosta v. Hawaii, Civ. No. 10-00739 JMS-BMK,
2010 WL 5390130, at *2 (D. Haw. Dec. 20, 2010) (citing Agyeman v. Corr. Corp.
of Am., 390 F.3d 1101, 1103 (9th Cir. 2004)). The court must consider three
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42 U.S.C. § 2000e-5(f)(1)(B) provides, in relevant part, “[u]pon application by the complainant 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 action without the payment of fees, costs, or security.”
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factors in requests for appointment of counsel: (1) the plaintiff’s financial
resources; (2) the efforts made by the plaintiff to secure counsel; and (3) whether
the plaintiff’s claim has merit. Bradshaw, 662 F.2d at 1318. In addition to these
three Bradshaw factors, the court may consider the plaintiff’s ability to proceed pro
se. Miljkovic v. Univ. of Hawaii, Civ. No. 09-00064 ACK-KSC, 2010 WL
346450, at *1 (D. Haw. Jan. 27, 2010). The plaintiff has the burden of persuasion
as to all three factors, and an unfavorable finding as to any one factor is fatal to his
request. Id.
1. Plaintiff’s Financial Resources
As to the first factor, Plaintiff indicates that he is employed by TMobile and makes $680 per month. (Doc. 3 at 5.) The only additional income
Plaintiff received within the past twelve months has been from unemployment
insurance. (Doc. 3 at 6.) Plaintiff also has $5,700 cash on hand or in a savings or
checking account. (Id.) Although Plaintiff appears to have the financial resources
to pay the requisite filing fees, (see Doc. 5), his ability to afford an attorney is less
clear. Based on the information provided by Plaintiff, the Court is satisfied that
Plaintiff does not have sufficient income and asserts to retain private counsel.
Therefore, the Court finds that Plaintiff’s financial resources weigh in favor of
appointing counsel.
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2. Plaintiff’s Efforts to Obtain Counsel
The second factor requires Plaintiff to “make what can be considered
a reasonably diligent effort under the circumstances to obtain counsel.” Bradshaw,
662 F.2d at 1319. In Bradshaw, the plaintiff met this threshold by contacting more
than ten attorneys, each of whom declined to represent her except upon financial
terms that she was unable to meet. Id.
Here, Plaintiff states that he contacted seven attorneys, and generally
asserts that he cannot afford to obtain a private attorney and is unable to find an
attorney willing to represent him on terms that he can afford. (Doc. 3 at 1, 4-5.)
Apart from these general assertions, Plaintiff does not specify why he is unable to
meet the terms of representation offered by the attorneys contacted, or why private
representation is not possible. Contingent fee arrangements are often appropriate
when a plaintiff is able to demonstrate the existence of a valid claim, so it may be
that Plaintiff must focus on establishing for counsel why his claims are colorable.
See Gregory v. Hilton Resorts Corp., Civ. No. 08-00476 SOM-BMK, 2008 WL
4755672, at *1 (D. Haw. Oct. 23, 2008) (encouraging complainant to make further
efforts to secure counsel and provide counsel with details supporting his claims).
Moreover, based upon Plaintiff’s representations, it appears that
Plaintiff has not attempted to take advantage of free legal services such as those
provided by Volunteer Legal Services Hawaii. While the Court recognizes that
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Plaintiff has made some effort to retain counsel, the Court notes that greater efforts
could be made. See e.g., Turner v. Dep’t of Educ., Civ. No. 10-00707 ACK-BMK,
2010 WL 6571413, at *2 (D. Haw. Dec. 13, 2010) (holding that contacting seven
attorneys and Volunteer Legal Services Hawaii was not a reasonably diligent effort
to obtain counsel). On the present record, the Court finds that Plaintiff has not
made a reasonably diligent effort under the circumstances to obtain counsel.
Accordingly, the Court finds that this factor militates against appointing counsel.
3. The Merits of Plaintiff’s Claim
As to the third and final factor, Plaintiff must show that his claim has
“some merit.” Bradshaw, 662 F.2d at 1319. Title VII makes it “an unlawful
employment practice for an employer . . . to discharge any individual, or otherwise
to discriminate against any individual . . . because of such individual’s race, color,
religion, sex, or national origin[.]” 42 U.S.C. § 2000e-2(a)(1). In deciding
whether a Title VII claim has some merit, “the EEOC determination regarding
‘reasonable cause’ should be given appropriate weight[.]” Bradshaw, 662 F.2d at
1319-20.
In this case, the EEOC investigated Plaintiff’s claim and determined
that it is “unable to conclude that the information obtained establishes violations of
the statutes.” (Doc. 1-1 at 4.) Although the EEOC Dismissal and Notice of Rights
letter sent to Plaintiff indicates that no certification is made as to whether
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respondent is in compliance with the statutes, the EEOC closed the file on
Plaintiff’s charge and notified Plaintiff of his right to institute a civil action under
Title VII against Defendant. (Doc. 1-1 at 4.) In light of the EEOC’s conclusion,
the Court cannot definitively say that Plaintiff’s claim has “some merit.”
Furthermore, upon review of the Complaint filed in this case, the
Court is unable to find any factual allegations supporting Plaintiff’s claim that
Defendant’s actions were discriminatory based on gender. Apart from the general
assertions that Plaintiff was working as a manager within a club “dominated by
female employees,” and that he was “treated like a regular employee having a
dispute with another employee and not like a manager having to deal with
insubordination of an employee[,]” Plaintiff makes no allegation that Defendant
terminated his employment on the basis of gender. (See Doc. 1 at 4-6.) Instead,
Plaintiff merely expresses dissatisfaction with the way the incident involving
Employee was handled in that “24 Fitness did not support [Plaintiff] as a
manager,” and “he was fired as a result.” (See Doc. 1 at 5.) Inasmuch as Plaintiff
is unable to articulate specific and key indications of discrimination in
employment, the third Bradshaw factor weighs against the appointment of counsel.
CONCLUSION
On balance, the Bradshaw factors weigh against the appointment of
counsel in this case. In addition, the Court observes that Plaintiff’s Complaint does
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not raise complex issues of law, and he appears capable of articulating the facts
and legal issues in court and is therefore seemingly able to proceed pro se. See
McCue v. Food Pantry, Ltd., Civ. No. 08–00129 ACK–KSC, 2008 WL 852018, at
*3 (D. Haw. Mar. 28, 2008). As noted above, the appointment of counsel in
employment discrimination cases is discretionary, and there is no constitutional
right to counsel. Indeed, the Court notes that in most cases it cannot expend public
resources to provide plaintiffs with counsel. Id. Accordingly, because
“exceptional circumstances” do not exist here, Plaintiff’s Request for Appointment
of Counsel is DENIED.
The Court advises Plaintiff that he must represent himself pro se
unless and until he is able to retain counsel and counsel enters an appearance in
this case. Pro se litigants are responsible for complying with all of the applicable
court rules and deadlines. Motoyama v. Hawaii, Dep’t of Transp., 864 F. Supp. 2d
965, 976 (D. Haw. 2012) (“[P]ro se litigants must follow the same rules of
procedure that govern other litigants.” (citation omitted)).
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, December 30, 2014.
/S/ Barry M. Kurren
Barry M. Kurren
United States Magistrate Judge
Williams v. 24 Hour Fitness USA, Inc., CIV. NO. 14-00560 BMK-NONE; ORDER DENYING
PLAINTIFF’S REQUEST FOR APPOINTMENT OF COUNSEL
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