ADEFILA v. SELECT SPECIALTY HOSPITAL et al

Filing 11

MEMORANDUM OPINION AND ORDER as set out herein signed by MAG/JUDGE L. PATRICK AULD on 03/07/2013. ORDERED that Plaintiff's Motion for Help with Attorney Representation (Docket Entry 7 ) is DENIED.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

CHRISTIANAH O. ADEFILA,
Plaintiff,
v.
SELECT SPECIALTY HOSPITAL,
Defendant.

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1:13CV68

MEMORANDUM OPINION AND ORDER
This case comes before the Court on Plaintiff’s Motion for
Help with Attorney Representation (Docket Entry 7).
Entry dated Feb. 8, 2013.)

(See Docket

For the reasons that follow, the Court

will deny the instant Motion.1
BACKGROUND
Plaintiff commenced this action on January 28, 2013, by filing
pro se an Application to Proceed In Forma Pauperis (Docket Entry 1)
and

a

Complaint

(Docket

Entry

2).

The

Court

denied

that

Application on the ground that Plaintiff did not qualify for pauper

1

A motion for appointment of counsel constitutes a pretrial
matter as to which the undersigned United States Magistrate Judge
may enter an order.
See 28 U.S.C. § 636(b)(1)(A); McNary v.
Norman, No. 96-3421, 134 F.3d 374 (table), 1998 WL 4738, at *3 (7th
Cir. Jan. 6, 1998) (unpublished); In re Lane, 801 F.2d 1040, 1042
(8th Cir. 1986); Siers v. Morrash, 700 F.2d 113, 115 (3d Cir.
1983); Williams v. Canady, No. 5:10CV558FL, 2011 WL 1897440, at *12 (E.D.N.C. May 18, 2011) (unpublished); Abu-Shabazz v. Sondervan,
No. AW-03-1012, 2004 WL 1391408, at *2 (D. Md. Feb. 17, 2004)
(unpublished), aff’d, 96 F. App’x 920 (4th Cir. 2004); Kampfer on
behalf of Kampfer v. Gokey, 159 F.R.D. 370, 372 (N.D.N.Y. 1995);
Leguia v. Temco Serv. Indus., No. 88CIV0204(SWK), 1988 WL 120131,
at *1 (S.D.N.Y. Oct. 28, 1988) (unpublished).

status.

(Docket Entry 5.)2

She then paid the filing fee (see

Docket Entry dated Feb. 8, 2013) and filed the instant Motion
(Docket Entry 7), as well as an Amended Complaint (Docket Entry 8),
whereupon the Clerk issued a Summons as to Defendant Select
Specialty Hospital (“Defendant Hospital”) (Docket Entry 9).3
According

to

the

Amended

Complaint,

Plaintiff

“began

employment with [Defendant Hospital] on May 16, 2012 . . . [and]
held the position of a Registered Nurse . . . [when,] [o]n June 25th
2012, . . . the CNO (Chief Nursing Officer) . . . told [Plaintiff]
that [she was] fired . . . because [she] left medication in the
patient’s room while [she] took the patient for a procedure in
[sic] another floor.”

(Docket Entry 8 at 2; see also id. at 2-3

(appearing to admit that Plaintiff, in fact, had left medicine in
patient’s room while she took patient for treatment).) The Amended
Complaint “demands judgement against [Defendant Hospital] for
violation of Title VII of the Civil Rights Act of 1964 . . . .”

2

“[The] Application reflects that [Plaintiff’s] husband earns
an annual salary of $48,000 and received $14,000 in Social Security
income in the last year, as well as that [Plaintiff and her
husband] have no dependents. Given those circumstances and the
monthly expenses claimed in the Application, the Court conclude[d]
that Plaintiff ha[d] the ability to pay the modest filing fee
. . . .” (Docket Entry 5 at 1 n.1 (internal citations omitted).)
3

The original Complaint listed Defendant Hospital in the
caption, but named as defendants in the body an “EEO Manager,
Select Medical Corporation,” as well as a “Human Resource Coordinator” and an “RN Charge Nurse” of Defendant Hospital. (Docket
Entry 2 at 1-2.)
The Amended Complaint, however, names only
Defendant Hospital as a defendant.
(Docket Entry 8 at 1-2.)
Accordingly, the caption for this case, as well as the docket text
associated with the Amended Complaint, should identify as a
defendant only Defendant Hospital.
-2-

(Id. at 13; see also id. at 1 (predicating jurisdiction on “Federal
Question 28 U.S.C. § 1331 and Title VII”), 10 (alleging that
Plaintiff “was discriminated against . . . [when] fired . . .
violat[ing] [her] right [sic] according to Title VII”).)
Liberally construed, the Amended Complaint asserts these
claims:
1) discrimination based on national origin, in the form of
both

hostile

work

environment

and

termination

of

employment,

premised on the allegation that a “Charge Nurse[,] who [is] . .

a

Sierra Leonian [whereas Plaintiff is] a Nigerian[,] said hateful
and racial things to [Plaintiff] like:

Nigerians are carnivals

[sic] . . . because [the Charge Nurse’s] aunt married a Nigerian
and now she got [sic] missing” (id. at 6; see also id. at 5
(alleging, under heading “Harrassment [sic],” that Charge Nurse
“berated [Plaintiff] in the presence of [her] patients that [she]
didn’t know what [she was] doing[,] . . . slapped [Plaintiff’s]
wrist and statched [sic] things from [her] hand[,] . . . [and] hid
away [Plaintiff’s] documentations [sic] on a new admit . . .
[before] show[ing] up with the papers and screem[ing] [sic] so
loudly at [her] in the hallway [‘]what is your problem[’] . . . and
then throw[ing] the papers at [her] . . . in front of all the
staff”), 8 (asserting that Charge Nurse “got [Plaintiff] fired”));
2) discrimination based on “disability,” in the form of both
hostile work environment and termination of employment, premised on
the allegations that A) Plaintiff has a “limitation of not lifting

-3-

anything over 50 lbs as ordered by [her] doctor following an injury
on [her] former job in 2010,” B) an “[A]ssistant [C]harge [N]urse
. . . asked [Plaintiff] to help her with a patient . . . [who]
weighed

. . . 200-300 lbs so [Plaintiff] told [the Assistant

Charge Nurse that Plaintiff] could not do it by [her]self,” C) the
Assistant Charge Nurse “got so mad and she went and called [the
Charge Nurse] and reported [Plaintiff],” and D) “[s]ince then [the
Charge Nurse] screemed [sic] and yelled at [Plaintiff] at any time
[Plaintiff] interacted with [the Charge Nurse]” (id. at 7; see also
id. at 5 (setting out, under heading “Harrassment [sic],” alleged
abuse by Charge Nurse), 8 (asserting that Charge Nurse “got
[Plaintiff] fired”)); and
3) retaliation, in that “[o]n October 15th 2012 [Plaintiff]
started working with Davita [Dialysis Inc.] . . . [and a] week into
[her] orientation [she] received a message . . . that [she] should
report to [Defendant Hospital; however, the next day] . . .
[Plaintiff] received a call on [her] cell phone from the manager
[at

Davita

[Defendant

Dialysis]
Hospital]

stating

that

immediately

[Plaintiff]

because

should

[Defendant

leave

Hospital]

called and told [the Davita Dialysis manager] that [Plaintiff]
could not work on any of [Defendant Hospital’s] patients because
[she] was terminated and [she] had filed charge [sic] against
[Defendant Hospital] with the EEOC . . . and [later that day the
Davita Dialysis manager] said since [Plaintiff] ha[d] filed charge
[sic] against [Defendant Hospital the Davita Dialysis manager] no

-4-

longer could have [Plaintiff and,] . . . [o]n the 5th of November
2012, [Davita Dialysis] fired [Plaintiff]” (id. at 11-12).
Plaintiff attached to her Amended Complaint five exhibits:
1) a letter dated July 1, 2012, from Plaintiff to the Chief
Executive Officer of Defendant Hospital asking “to have [her]
termination decision to be reconsidered” (id., Ex. E);
2)

a

“Charge

of

Discrimination”

dated

August

16,

2012,

presented by Plaintiff to the United States Equal Employment
Opportunity Commission (“EEOC”) and assigned Charge Number 4352012-00798, which alleges discrimination by Defendant Hospital in
May

and

June

2012

based

on

“Race,”

“National

Origin,”

and

“Disability” (id., Ex. D);4
3) a “Dismissal and Notice of Rights” by the EEOC as to Charge
Number 435-2012-00798, dated November 2, 2012, reporting the EEOC’s
“determination[,] [b]ased upon its investigation, [that it was]
unable to conclude that the information obtained establishe[d]
violations of the statutes” (id., Ex. A);
4) a “Charge of Discrimination” dated December 17, 2012,
presented by Plaintiff to the EEOC and assigned Charge Number 435-

4

Said Charge of Discrimination identifies June 22, 2012, both
as the “Latest” of the “Date(s) Discrimination Took Place” and as
the date Plaintiff “was discharged”; however, at another point, it
(apparently mistakenly) gives “July 22, 2012,” as the date
Plaintiff “received a call . . . inform[ing] [her] that [she] was
discharged.”
(Docket Entry 8, Ex. D.)
Regarding race
discrimination, said Charge of Discrimination describes the CNO who
notified Plaintiff of her discharge as “White-American” and asserts
that “[a] White-American has had at least two medication errors,
but she was not discharged.” (Id.) As noted above, the Amended
Complaint does not contain any allegation of race discrimination.
-5-

2013-00123, which alleges “Retaliation” by Defendant Hospital on
November 5, 2012 (id., Ex. B); and
5) a “Notice of Right to Sue (Issued on Request)” by the EEOC
to Plaintiff as to Charge Number 435-2013-00123, dated January 31,
2013, in which the EEOC states that “[l]ess than 180 days have
passed since the filing of this charge, but . . . it is unlikely
that

the

EEOC

processing

will

within

be

180

able

days

to

.

.

complete
.

[and

the

that]

administrative
[t]he

EEOC

is

terminating its processing of this charge” (id., Ex. C).
DISCUSSION
Title VII makes it “an unlawful employment practice . . . to
discharge any individual, or otherwise to discriminate against any
individual with respect to . . . 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)(1); see also

Jordan v. Alternative Res. Corp., 458 F.3d 332, 339 (4th Cir. 2006)
(observing

that

discrimination

as

to

“terms,

conditions,

or

privileges of employment, because of [an] individual’s race[,
color,

religion,

sex,

or

national

origin]

.

.

.

includes

maintaining a racially[, color-based, religiously, sexually, or
national

origin-based]

hostile

quotation marks omitted)).
unlawful

employment

work

environment”

(internal

In addition, Title VII makes it “an

practice

for

an

employer

to

discriminate

against any of his employees . . . because [the employee] has made
a charge . . . under [Title VII].”

-6-

42 U.S.C. § 2000e–3(a).

Further, although “Title VII is unquestionably silent regarding
discrimination

motivated

by

a

person’s

physical

or

mental

impediment[,] [s]uch claims are contemplated . . . by the Americans
with Disabilities Act [(the “ADA”)] . . . .”

Sanchez Ramos v.

Puerto Rico Police Dep’t, 392 F. Supp. 2d 167, 176 (D.P.R. 2005).
More specifically, as pertinent here, Subchapter I of the ADA
declares that “[n]o covered entity shall discriminate against a
qualified individual on the basis of disability in regard to . . .
discharge of employees . . . and other terms, conditions, and
privileges of employment.”

42 U.S.C. § 12112(a); see also Fox v.

General Motors Corp., 247 F.3d 169, 176 (4th Cir. 2001) (“[T]he
ADA, like Title VII, creates a cause of action for hostile work
environment

harassment.”).

Similarly,

the

ADA

contains

a

“retaliation provision [that] provides, in relevant part, ‘no
person shall discriminate against any individual because such
individual made a charge under [the ADA].’”

Reynolds v. American

Nat’l Red Cross, 701 F.3d 143, 154 (4th Cir. 2012) (quoting 42
U.S.C.

§

12203(a))

(internal

brackets

and

ellipses

omitted).

Accordingly, despite its facial invocation only of Title VII, the
Amended Complaint (liberally construed) asserts claims both under
Title VII (for discrimination based on national origin and for
retaliation due to filing an EEOC charge of discrimination based on
race and national origin) and under the ADA (for discrimination
based on disability and for retaliation due to filing an EEOC
charge of discrimination based on disability).

-7-

In her instant Motion, Plaintiff asks the Court to “assign[]
an attorney to represent [her] in [this] lawsuit.”
7 at 1.)

(Docket Entry

Title VII states, in relevant part, that, “[u]pon

application by [a plaintiff who has brought a discrimination or
retaliation claim under Title VII] and in such circumstances as the
court may deem just, the court may appoint an attorney for such
[plaintiff] . . . .”

42 U.S.C. § 2000e-5(f)(1) (emphasis added).

Moreover, Subchapter I of the ADA specifies that “[t]he powers,
remedies, and procedures set forth in [S]ection[] . . . 2000e-5
. . . of [Title 42] shall be the powers, remedies, and procedures
. . . provide[d] to . . . any person alleging discrimination on the
basis of disability in violation of any provision of . . . [the
ADA] concerning employment.”
retaliation

section,

in

42 U.S.C. § 12117.

turn,

declares

that

The ADA’s

“remedies

and

procedures available under [S]ection[] 12117 . . . of [Title 42]
shall be available to aggrieved persons for violations of [the
prohibition on retaliation for filing a charge of discrimination in
employment based on disability].”
Although
appointment

the
of

foregoing

counsel

for

42 U.S.C. § 12203(c).

statutory

provisions

plaintiffs

pursuing

permit

the

employment

discrimination and retaliation claims under Title VII and the ADA,
“Title VII [and, by direct extension, ADA] litigants have no
statutory right to counsel.” Anderson v. Potter, 149 F. App’x 175,
175 (4th Cir. 2005) (citing Jenkins v. Chemical Bank, 721 F.2d 876,
879 (2d Cir. 1983), and Young v. K-Mart Corp., 911 F. Supp. 210,

-8-

211 (E.D. Va. 1996)) (emphasis added); accord Castner v. Colorado
Springs Cablevision, 979 F.2d 1417, 1420 (10th Cir. 1992) (citing
Poindexter v. Federal Bureau of Investigation, 737 F.2d 1173, 1179
(D.C. Cir. 1984), and Ivey v. Board of Regents of Univ. of Alaska,
673 F.2d 266, 269 (9th Cir. 1982)); Gonzalez v. Carlin, 907 F.2d
573, 579 (5th Cir. 1990); Hunter v. Department of the Air Force
Agency, 846 F.2d 1314, 1317 (11th Cir. 1988); Slaughter v. City of
Maplewood, 731 F.2d 587, 590 (8th Cir. 1984); Tyson v. Pitt Cnty.
Gov’t, 919 F. Supp. 205, 206 (E.D.N.C. 1996); McIntyre v. Michelin
Tire Corp., 464 F. Supp. 1005, 1008 (D.S.C. 1978); see also Melton
v. Freeland, No. 1:96CV516, 1997 WL 1048768, at *2 (M.D.N.C. Apr.
8, 1997) (unpublished) (Tilley, J.) (addressing parallel attorney
appointment authority as to ADA public accommodation claims).

“To

the contrary, the statutory language expressly leaves this decision
to the discretion of the trial court.”

Poindexter, 737 F.2d at

1183; accord Anderson, 149 F. App’x at 175; Castner, 979 F.2d at
1420;

Gonzalez,

907

F.2d

at

579;

Hunter,

846

F.2d

at

1317;

Slaughter, 731 F.2d at 590; Jenkins, 721 F.2d at 879; Ivey, 673
F.2d at 269; Melton, 1997 WL 1048768, at *2; Tyson, 919 F. Supp. at
206-07; Young, 911 F. Supp. at 211; McIntyre, 464 F. Supp. at 1008.
To

help

ensure

proper

exercise

of

that

discretion,

the

“[f]actors [this] [C]ourt should consider when determining whether
to appoint counsel are:

(1) whether the [plaintiff] has the

financial ability to retain counsel; (2) whether the [plaintiff]
has made a diligent effort to retain counsel; (3) whether the

-9-

[plaintiff] has a meritorious claim; and (4) whether the plaintiff
is capable of representing herself.”

Melton, 1997 WL 1048768, at

*2-3 (citing Tyson, 919 F. Supp. at 207, and Young, 911 F. Supp. at
211); accord Castner, 979 F.2d at 1420-21; Poindexter, 737 F.2d at
1185; Jenkins, 721 F.2d at 880; McIntyre, 464 F. Supp. at 1008.5
The discussion which follows addresses each of those factors.
1.

Financial Ability

Plaintiff’s instant Motion does not contend that a lack of
funds has impeded her ability to hire an attorney.
Entry 7 at 1-2.)6

(See Docket

Further, a prior sworn statement from Plaintiff

5

The Fifth, Eighth, and Ninth Circuits’ previously cited
decisions did not identify the fourth above-listed factor
concerning the plaintiff’s ability to handle the case, see
Gonzalez, 907 F.2d at 580; Slaughter, 731 F.2d at 590; Ivey, 673
F.2d at 269, and the Eleventh Circuit’s above-cited decision did
not directly reference the first above-listed factor regarding the
plaintiff’s ability to pay, see Hunter, 846 F.2d at 1317; however,
more recently, district courts within all four of those Circuits
have addressed all four of the above-cited factors, see, e.g.,
Lampkin v. Texas Dep’t of Pub. Safety, No. A12CV876SS, 2013 WL
264541, at *5 (W.D. Tex. Jan. 22, 2013) (unpublished); Maxwell v.
Express Scripts, Inc., No. 4:11CV1315CDP, 2012 WL 996651, at *7
(E.D. Mo. Mar. 22, 2012) (unpublished); Winchester v. Yakima Cnty.
Super. Ct., No. CV-10-3057-EFS, 2011 WL 133017, at *1 (E.D. Wash.
Jan. 14, 2011) (unpublished); Donohoe v. Food Lion Stores, Inc.,
253 F. Supp. 2d 1319, 1321 (N.D. Ga. 2003).
6

The instant Motion does state that Plaintiff “will be
willing to pay the lawyer assigned to [her] after the case is over
if need be.” (Docket Entry 7 at 1.) That statement, however,
fails to assert that Plaintiff could not afford to pay an attorney
before the case ends; at most, it implies an unwillingness by
Plaintiff to compensate counsel until the conclusion of the case,
i.e., a preference by Plaintiff for a contingency arrangement.
Moreover, it appears Plaintiff, in fact, secured counsel for
purposes of proceedings before the EEOC, but that said counsel
declined to handle the litigation in this Court because “she was
too busy to take [the] case.” (Id.)
-10-

reflects “that [her] husband earns an annual salary of $48,000
(Docket Entry 1 at 1) and received $14,000 in Social Security
income in the last year (id. at 2), as well as that [she and her
husband] have no dependents (id. at 3).”
n.1.)

(Docket Entry 5 at 1

Nor do the monthly expenses of Plaintiff and her husband

outstrip their income.

(See Docket Entry 1 at 3.)

This case thus

does not represent one in which “payment of fees would jeopardize
the plaintiff’s ability to maintain the necessities of life.”
Poindexter, 737 F.2d at 1186.

Additionally, because the statutes

underlying Plaintiff’s claims “authorize[] the Court to allow the
prevailing party a reasonable attorney’s fee, it appears that if
her claim has merit then she might be able to obtain counsel on a
contingency basis.”

Melton, 1997 WL 1048768, at *3; accord

McIntyre, 464 F. Supp. at 1010; see also Edwards v. Senatobia Mun.
Sch. Dist., No. 2:12CV39-MPM-JMV, 2012 WL 1989224, at *1 (N.D.
Miss. June 4, 2012) (unpublished) (“[M]any, if not most plaintiff’s
attorneys, will take cases based on contingency fees.”).
At a minimum, “with a steady stream of income [Plaintiff] [i]s
in no worse financial straits than many litigants who seek an
attorney to take their case, perhaps under a contingency or other
modified payment basis.”

Gonzalez, 907 F.2d at 580.

therefore weighs against appointment of counsel.

This factor

See Poindexter,

737 F.2d at 1183 (observing that rationale for appointment of
counsel in this context is “implicated most seriously when a
plaintiff cannot afford to hire counsel”), 1186 (“The appointment

-11-

provision is primarily intended to protect plaintiffs with limited
economic means.”).

Indeed, “[i]f a court finds that a plaintiff

can afford to hire counsel, this ordinarily will be a dispositive
ground for denying the request for appointment.”
2.

Id. at 1186.

Diligence of Effort

The instant Motion proffers that Plaintiff “ha[s] been calling
all the lawyers from the attorney refferal [sic] list and also
online list, but to no avail.”

(Docket Entry 7 at 1.)

It,

however, provides no further details about the lists Plaintiff
reportedly

utilized.

(See

id.)

In

other

words,

“[t]hough

Plaintiff has stated [s]he made efforts to employ counsel, [s]he
has failed to specify even the number of contacts [s]he has made.
The [proffer] provided by Plaintiff [is thus] insufficient for the
Court to determine if [s]he has satisfied this factor.” Donohoe v.
Food Lion Stores, Inc., 253 F. Supp. 2d 1319, 1321 (N.D. Ga. 2003);
see also Jenkins, 721 F.2d at 880 (indicating that plaintiff
seeking appointment of counsel should identify “number of contacts
with potential counsel”).

Under these circumstances, the Court

will treat this factor as neutral.
3.

Merits of Claim(s)

The Court next assesses “whether [Plaintiff] has a meritorious
claim[.]”

Melton, 1997 WL 1048768, at *3.7

In this regard, the

Court notes first that (as documented in the Background section)

7

In making this assessment, “the [C]ourt need not . . . go so
far as to actually decide the merits of the case . . . .”
Poindexter, 737 F.2d at 1187 n.35.
-12-

the EEOC rendered an adverse determination on Plaintiff’s claims of
national origin and disability discrimination.

Although the Court

“may not give preclusive effect to an EEOC finding that the
evidence does not support a finding of discrimination . . ., the
EEOC’s administrative finding is a highly probative factor to be
considered.”

Castner, 979 F.2d at 1422 (internal quotation marks

omitted); accord Gonzalez, 907 F.2d at 580; Hunter, 846 F.2d at
1317. The EEOC’s finding contrary to Plaintiff’s position takes on
even

greater

significance

in

this

case,

given

her

admission

(detailed in the preceding subsection) that multiple attorneys have
declined to take her case.

See Rand v. Wolf Creek Nuclear

Operating Corp., Civil Action No. 11-4136-KHV-GLR, 2012 WL 1154509,
at

*4

(D.

Kan.

Apr.

5,

2012)

(unpublished)

(“[A]n

adverse

administrative finding coupled with many attorneys declining to
represent the plaintiff, may ‘provide strong evidence that [the]
plaintiff’s case lacks merit.’” (quoting Jones v. Pizza Hut, Inc.,
No. 10-CV-442-WYD-KMT, 2010 WL 1268048, at *2 (D. Colo. Mar. 30,
2010)

(unpublished)));

Brownlee

v.

American

Elec.

Power,

No.

1:11CV97, 2011 WL 3163183, at *1 n.1 (N.D. Ind. July 26, 2011)
(unpublished) (“[The plaintiff] has made several attempts to obtain
counsel on her own; none, however, would apparently take the case.
. . .

[T]his is an indication that [her] case may indeed have

little merit . . . [particularly given that] it received a no
probable cause finding at the administrative level . . . .”);
Application of Miller, 427 F. Supp. 896, 898 (W.D. Tex. 1977)

-13-

(“[T]he inability to find a lawyer to handle the case on a
contingent fee basis, when coupled with the adverse finding by the
EEOC, indicates a probability that [the plaintiff’s] case against
his employer is without merit.” (internal citation omitted)).
Further, as set forth in the Background section, the Amended
Complaint focuses on the alleged national origin- and disabilitybased bias of the Charge Nurse, but does not provide any nonconclusory factual matter that would support a finding that the
Charge Nurse “was either primarily responsible for [the adverse]
employment

decision

decisionmaker.”

or

had

influence

over

the

relevant

Lampkin v. Texas Dep’t of Pub. Safety, No.

A12CV876SS, 2013 WL 264541, at *4 (W.D. Tex. Jan. 22, 2013)
(unpublished).

“In other words, [Plaintiff] has presented no

fact[ual] [allegations] that suggest any causal link between her
alleged

disability

[or

employment decision.”
Background

section)

national

Id.
the

origin]

and

[the

challenged]

Moreover, (again, as detailed in the
Amended

Complaint

acknowledges

that

Defendant Hospital gave a nondiscriminatory explanation for its
decision to fire Plaintiff, i.e., that she improperly handled
medication.

Given the absence, at least at this point, of any

basis to treat that explanation as pretextual, it “would constitute
a legitimate nondiscriminatory reason for Defendant [Hospital’s]
actions and would defeat Plaintiff’s claim.” Donohoe, 253 F. Supp.
2d at 1323.

At a minimum, these circumstances “raise serious

questions about the strength of Plaintiff’s case.”

-14-

Id.

Additional questions about the meritoriousness of Plaintiff’s
case arise when one scrutinizes the allegations of animus based on
national origin and disability lodged against the Charge Nurse in
the Amended Complaint (which animus Plaintiff then seemingly seeks
to

impute

without

Specifically,

the

factual
analysis

support
of

the

to

Defendant

Amended

Hospital).

Complaint

in

the

Background section shows that the entire foundation for Plaintiff’s
discriminatory firing and hostile work environment claims consists
of one alleged remark about Nigerians by the Charge Nurse and one
incident where the Charge Nurse purportedly got mad when Plaintiff
refused to lift a patient.

Based on those two events, Plaintiff

apparently would have a fact-finder take two logical leaps:
1) that bias against Nigerians and the disabled caused all of
the other negative interactions Plaintiff had with the Charge Nurse
(which, as described in the Amended Complaint and summarized in the
Background

section,

otherwise

would

reflect

boorish

and

unprofessional conduct by the Charge Nurse, but not discrimination
based on national origin or disability); and
2) that Plaintiff’s negative interactions with the Charge
Nurse constituted a national origin- and disability-based hostile
work environment for which Defendant Hospital bore responsibility,
as well as the impetus for its decision to fire Plaintiff.
Many

grounds

exist

to

discount

the

viability

predicated on such an attenuated inferential chain.

of

claims

As an initial

matter, just as the “[l]aw does not blindly ascribe to race all

-15-

personal conflicts between individuals of different races,” Hawkins
v. Pepsico, Inc., 203 F.3d 274, 282 (4th Cir. 2000), the law does
not permit the assumption that all personal conflicts between
individuals of differing national origins or physical conditions
occurred due to such differences.

In addition, the Amended

Complaint acknowledges the existence of an explanation for the
conflict between Plaintiff and the Charge Nurse totally unrelated
to bias premised on national origin or disability: “I believe [the
Charge Nurse] was afraid that I am not going to be pushed to do
unlawful things like she enjoys doing [such as not wearing gloves
as required] and so she wanted to get rid of me quickly. . . .

It

was only the Charge Nurse who had told me anything [critical of my
job performance] and since she was not happy because I don’t just
follow her like a zombie, she must have reported me and wanted me
fired.”

(Docket Entry 8 at 9; see also id. at 3-4 (describing two

incidents in which Plaintiff challenged directives from the Charge
Nurse that Plaintiff viewed as jeopardizing patient welfare and
then sought to have a physician assistant (on one occasion) and a
doctor (on the other) overrule the Charge Nurse), 10 (complaining
that Charge Nurse slept while on duty).)
Notably, Plaintiff’s letter to the Chief Executive Officer of
Defendant

Hospital

requesting

reconsideration

of

her

firing

describes in detail the same two disagreements Plaintiff had with
the Charge Nurse over patient care later referenced in the Amended
Complaint; however, at no point in that letter did Plaintiff assert

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in anyway that she believed animus stemming from national origin or
disability

motivated

the

Charge

Nurse,

much

termination decision resulted from any such bias.
E.)

less

that

the

(See id., Ex.

Similarly, the foregoing letter omits any discussion of the

alleged abusive conduct (e.g., screaming, belittling, slapping, and
snatching or hiding of papers) by the Charge Nurse for which the
Amended Complaint apparently would have Defendant Hospital held
responsible. (See id.) As a final matter, the fact that Plaintiff
felt comfortable communicating directly with Defendant Hospital’s
Chief Executive Officer and going over the Charge Nurse’s head to
a physician assistant and a doctor makes all the more glaring
Plaintiff’s admitted failure to notify anyone in a position of
authority at Defendant Hospital about:

1) the Charge Nurse’s

alleged creation of a national origin- and disability-based hostile
work environment; and/or 2) Plaintiff’s desire for accommodation of
her

purported

lifting

restriction.

(See

id.

at

8

(giving

conclusory rationale for Plaintiff’s decision not to report Charge
Nurse’s conduct to CNO, but offering no excuse as to why Plaintiff
failed to tell others in Defendant Hospital hierarchy about that
matter or any need for accommodation)).8
8

“Employers are not automatically liable for acts of
harassment levied by supervisors against subordinates.
Rather,
there must be some basis in law for imputing the acts of the
supervisor to the employer.” Spriggs v. Diamond Auto Glass, 242
F.2d 179, 186 (4th Cir. 2001) (internal citation omitted).
Moreover, liability for failure to accommodate a disability cannot
arise “until [the plaintiff] provide[s] a proper diagnosis and
request[s] specific accommodation.” Halpern v. Wake Forest Univ.
(continued...)
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Simply put, “[t]hough the [the discrimination portion of the
Amended Complaint] could not be construed as frivolous, it is
certainly not a strong discrimination case.
[P]laintiff

are

not

strongly

supported

The accusations by []
by

a

showing

of

any

discriminatory intent.”

Tyson, 919 F. Supp. at 207; accord Young,

911 F. Supp. at 212.

Nor does Plaintiff appear to have a

meritorious retaliation claim.
lawfully

fired

Plaintiff

Indeed, if Defendant Hospital

because

it

concluded

she

mishandled

medication (as the record in its current state would tend to
indicate) Defendant Hospital likely thereafter could bar Plaintiff
from working in its facility as a contractor (i.e., with Davita
Dialysis), regardless of the fact that Plaintiff had filed an EEOC
charge concerning her firing.

See Ogletree v. Glen Rose Indep.

Sch. Dist., 443 F. App’x 913, 914-18 (5th Cir. 2011) (affirming
entry of summary judgment against the plaintiff on retaliation
claim predicated on the refusal of her former employer (who
previously had fired her for alleged misconduct) to permit her to
volunteer at one of its facilities and/or to re-hire her, where
former employer cited non-retaliatory rationale of prior misconduct
allegations and observing that the former employer’s action was
“not at all arbitrary: if it hired [the plaintiff or permitted her
to volunteer] despite the prior accusations against her, and

8

(...continued)
Health Scis., 669 F.3d 454, 465 (4th Cir. 2012) (internal ellipses
and quotation marks omitted).
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another alleged instance of [similar misconduct] occurred, [said
employer] and its employees could face civil liability”).9
“In

sum,

although

[Plaintiff’s]

assertions

could

[]

conceivably survive[] a motion to dismiss pursuant to Fed. R. Civ.
P. 12(b)(6), they [a]re insufficient to warrant appointment of
counsel.”

Ferrelli v. River Manor Health Care Ctr., 323 F.3d 196,

205 (2d Cir. 2003).
4.

Capacity for Self-Representation

“Finally, [the] [C]ourt [will] consider [] [P]laintiff’s
ability to present the case adequately.”
1188.

Poindexter, 737 F.2d at

In this regard, the Court “look[s] to the complexity of the

legal issues and [P]laintiff’s ability to gather and present
crucial facts.”

Castner, 979 F.2d at 1422.

As the summary in the

Background section reflects, in her Amended Complaint, Plaintiff
has

demonstrated

the

ability

to

set

forth

detailed

factual

allegations and to articulate recognizable claims for employment
discrimination and retaliation.

Moreover, such claims generally

proceed under well-established legal frameworks.

See, e.g., Hoyle

v. Freightliner, LLC, 650 F.3d 321, 331-38 (4th Cir. 2005).
Further, although virtually all pro se plaintiffs face “serious[]
disadvantage[s],”

Poindexter,

737

9

F.2d

at

1188,

Plaintiff’s

Moreover, given the absence of any allegation in the Amended
Complaint that Defendant Hospital encouraged Davita Dialysis to
fire Plaintiff, any retaliation claim arising from Davita
Dialysis’s alleged decision to fire Plaintiff because she had filed
an EEOC claim against Defendant Hospital would seem to lie against
Davita Dialysis not against Defendant Hospital.
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prospects appear better than most, because, as a registered nurse,
she “is an educated individual who is capable of presenting h[er]
case in a competent fashion,” Young, 911 F. Supp. at 212.
Accordingly,
counsel.

this

factor

weighs

against

appointment

of

See Williams v. Court Servs. & Offender Supervision

Agency for D.C., 878 F. Supp. 2d 263, 267 (D.D.C. 2012) (“[T]here
is no indication that [this] case is more complex than many of the
straightforward actions filed in this court under Title VII, an
area where the law is fairly settled.

Moreover, [the plaintiff]

has

in

represented

himself

fairly

ably

proceedings

to

date.

Although the plaintiff’s pleadings are not always perfectly clear,
he has demonstrated an ability to communicate with the court and to
file appropriate motions. . . .
to

be

an

effective

advocate

[The plaintiff] appears prepared
on

his

own

behalf,

and

[thus]

appointment of counsel . . . is not necessary . . . .”); Spell v.
Maryland Human Relations Comm’n, Civil Action No. RDB-11-0803, 2011
WL 6000862, at *6 (D. Md. Nov. 28, 2011) (unpublished) (declining
to appoint counsel under Section 2000e-5(f)(1) based on finding
that the plaintiff’s “pleadings adequately present his claims and
the legal issues do not appear unduly complex”); Brownlee, 2011 WL
3163183, at *2 (“[T]he case is a relatively straightforward action
under the [ADA].

[The plaintiff] claims that the [d]efendant

failed to accommodate her disability and terminated her employment
in retaliation . . . .

[This] factor – the difficulty of her

claims – cuts against [her] request for counsel . . . [as does the

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fact that she] has already adequately articulated her claims . . .
.” (internal citations omitted)).
CONCLUSION
The statutory provisions at issue do not “ensure appointment
of counsel as a matter of course.”

Poindexter, 737 F.2d at 1183;

see also Castner, 979 F.2d at 1421 (“[T]he court must keep in mind
that Congress has not provided a mechanism for compensating such
appointed counsel.

Thoughtful and prudent use of the appointment

power is necessary so that willing counsel may be located without
the need to make coercive appointments.”).

Moreover, the record

indicates that Plaintiff “has the financial ability to retain
counsel,” Melton, 1997 WL 1048768, at *3, that she likely does not
have “a meritorious claim,” id., and that she has the “capab[ility]
of representing herself,” id.

As a result, even viewing the

question of whether Plaintiff diligently has attempted to hire an
attorney as at equipoise, the balance of relevant factors heavily
tilts against her instant request for appointment of counsel.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Help with
Attorney Representation (Docket Entry 7) is DENIED.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
March 7, 2013

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