King v. Greene's Energy Group, LLC

Filing 38

ORDER granting 36 MOTION for Extension of Time to Rebut Defendant's Opposition to Plaintiff's Motion for Appointment of Counsel, denying 34 MOTION for Appointment of Counsel. The Court ORDERS that King has until and including March 24, 2017 in which to cause a notice of appearance to be filed by retained counsel, or to otherwise update the Court if he intends to proceed pro se.(Signed by Judge Hilda G Tagle) Parties notified.(mserpa, 2)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
JOE E. KING,
Plaintiff,
VS.
GREENE’S ENERGY GROUP, LLC,
Defendant.

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February 27, 2017
David J. Bradley, Clerk

CIVIL NO. 2:15-CV-407

ORDER
The Court is in receipt of Plaintiff Joe E. King’s (“King”) Motion for
Appointment of Counsel, Dkt. No. 34. King seeks the Court to appoint counsel in
the above-captioned case, in which he alleges that Defendant Greene’s Energy
Group, LLC (“Greene’s Energy”) violated Title 42 U.S.C. Section 2000e et. seq. and
42 U.S.C. Section 1981 as amended by the Civil Rights Act of 1991 (“Title VII”), by
subjecting him to discrimination based upon his race/color, and retaliating against
him when he reported alleged instances of discrimination to his supervisor. See
Compl. ¶¶ 3–22.
I.

Background
King is an African American who worked for Greene’s Energy beginning on or

about February 10, 2010. King alleges that throughout his employment, he was
subjected to harassment and discrimination as a result of his race/color. He alleges
that in August 2014, Greene’s Energy refused to allow King to take an unpaid day
off despite affording other similarly situated non-African American employees
unpaid days off. King allegedly reported this discriminatory treatment to his
supervisor Santos Ruiz (“Ruiz”). King claims that Ruiz suspended King for a week
in retaliation for alleging that he was treated differently based on his race/color.
King alleges that in August 2014, he was also reprimanded for not wearing certain
safety equipment while other similarly situated non-African American employees

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were not reprimanded for the failure to wear safety equipment. In January 2015,
King was accused of theft by his employer, and alleges that while other non-African
Americans were implicated in the theft, only King was suspended without pay while
Greene’s Energy investigated the alleged theft. King alleges that Greene’s Energy
then retaliated against King by terminating him on or about February 5, 2015. See
Compl. ¶ 3–22; see also EEOC Form, Dkt. No. 37 at 7. King filed suit in federal
court on September 23, 2015, and was originally represented by Jennifer K. Loftin
(“Loftin”) and Abel Herrero (“Herrero”) of Herrero & Loftin, PLLC (“Herrero &
Loftin”). See Compl.
On March 24, 2016, Herrero & Loftin filed a motion for leave to withdraw as
King’s counsel of record, citing “irreconcilable differences” and an “adversarial
relationship” between the firm and King. Dkt. No. 19 at 1. In an affidavit
accompanying the motion for leave to withdraw, Herrero testified that on or about
October 2, 2015, King independently requested a summons be issued and also
independently attempted to have Greene’s Energy served. Affidavit of Herrero, Dkt.
No. 19-2, Ex. B at 1. Herrero and Loftin testified in their respective affidavits that
there was a “lack of trust” between King and Herrero & Loftin. See id.; see also
Affidavit of Loftin, Dkt. No. 19-1, Ex. A. at 2. Loftin testified, “In addition to the
lack of trust and adversarial relationship, Mr. King and the Firm cannot agree on
the manner in which his case should proceed such that the continued
representation of Mr. King is rendered unreasonably difficult.” Affidavit of Loftin,
Dkt. No. 19-1, Ex. A at 1. Herrero testified that due to the lack of trust between
King and Herrero & Loftin, he was “unable to communicate directly with opposing
counsel” without King being present, and that this “render[ed] representation
unreasonably difficult and present[ed] an unreasonable financial burden on the
Firm.” Affidavit of Herrero, Dkt. No. 19-2, Ex. B at 2.
On April 18, 2016, the Court held a hearing on the motion for leave to
withdraw, at which Loftin, Herrero, and King appeared. The Court heard sworn
testimony from Loftin and King, and King stated that he was unopposed to Herrero

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& Loftin’s motion to withdraw. Based on the evidence introduced at the hearing
held on April 18, 2016, this Court found that King received reasonable notice of
Loftin and Herrero’s motion to withdraw and that good cause existed to permit
them to withdraw. Dkt. No. 23; see also In re Wynn, 889 F.2d 644, 646 (5th Cir.
1989) (“An attorney may withdraw from representation only upon leave of the court
and a showing of good cause and reasonable notice to the client.”). After the
hearing, this Court ordered King to advise the Court whether he intended to retain
new counsel or appear pro se in this case. Dkt. No. 25 at 2. On July 7, 2016, this
Court stayed the case to allow King to locate new counsel, and ordered King to file a
status report or cause a notice of appearance to be filed by August 15, 2016. Dkt.
No. 30. at 2–3.
On August 15, 2016, King filed the instant Motion for Appointment of
Counsel, Dkt. No. 34. On September 6, 2016, Greene’s Energy filed its response to
the motion, Dkt. No. 35. On September 13, 2016, King filed a motion to extend his
reply deadline by thirty (30) days, Dkt. No. 36. King stated that he does not have
access to a computer, is not familiar with the law, and needs additional time to
research and prepare his reply. Id. at 1–2. On October 12, 2016, King filed his reply
in support of his Motion for Appointment of Counsel, Dkt. No. 37. Based on King’s
representations, the Court finds that good cause existed to extend his reply deadline
and GRANTS his motion entered September 13, 2016, Dkt. No. 36. See Fed. R. Civ.
P. 6(b)(1)(A). As such, King’s reply, Dkt. No. 37, is timely filed.
II.

Legal Standard
Title VII provides for the appointment of an attorney for a Title VII

complainant upon request “in such circumstances as the court may deem just.” 42
U.S.C. § 2000e–5(f)(1); Gonzalez v. Carlin, 907 F.2d 573, 579 (5th Cir. 1990).
“Congress specifically authorized courts to appoint counsel for Title VII
complainants in suits brought under Title VII.” Id. at 580 (citing 42 U.S.C. § 2000e–
5(f)(1)). Therefore, courts “should not neglect a highly remedial provision of Title VII
itself in considering whether to appoint a lawyer to represent” a Title VII plaintiff.

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Id. at 580 (citing Camps v. C & P Telephone Co., 692 F.2d 120, 126 (D.C. Cir. 1981)).
However, “[t]here is no automatic right to the appointment of counsel in a Title VII
case.” Id. at 579 (citing Caston v. Sears, Roebuck & Co., Hattiesburg, Miss., 556 F.2d
1305, 1309 (5th Cir. 1977)). Rather, the decision whether to appoint counsel rests
within the sound discretion of the trial court. Id. The plaintiff has the burden of
persuasion with regard to his application for an appointment of an attorney,
although should not be “saddled with formalized requirements such as the filing of
affidavits, statements, or structured pleadings.” Caston, 556 F.2d at 1310. “Such
technicalities are particularly inappropriate in a statutory scheme in which laymen,
unassisted by trained lawyers, initiate the process.” Id. (citing Love v. Pullman Co.,
404 U.S. 522, 527 (1972)).
District courts analyzing the merits of a Title VII plaintiff’s request for
counsel should consider: (1) the merits of the plaintiff’s claims of discrimination; (2)
the efforts taken by the plaintiff to obtain counsel; and (3) the plaintiff’s financial
ability to retain counsel. Gonzalez, 907 F.2d at 580 (citing Caston, 556 F.2d at
1309). No single factor is conclusive. Id.
On the first prong, in Caston, the Fifth Circuit held that, “[a]s the
administrative agency statutorily charged with the responsibility of enforcing Title
VII and presumably equipped with at least a modest amount of expertise in the
area,” the determination of the Employment Opportunity Commission (“EEOC”) is
“highly probative” insight into the likely merits of the claim for purposes of deciding
whether to appoint counsel. See Caston, 556 F.2d at 1309. However, the Fifth
Circuit held that, “[c]learly, the refusal to appoint counsel solely because the EEOC
finds no reasonable cause to believe that a claim exists would be an error” and
recognized that “the refusal to appoint counsel may in some circumstances
effectively deny a potential plaintiff his only remedy under the law.” Id. at 1308–09.
The Fifth Circuit held that the district court may—and perhaps even should—
inquire of plaintiff as to the validity of the EEOC’s no reasonable cause
determination and why plaintiff considers the determination to be in error. Id. “In

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this regard, a finding that the EEOC determination is supported by substantial
evidence in the investigative file and that plaintiff’s objections thereto are patently
frivolous would weigh heavily in the scales against appointing an attorney.” Id.
On the second prong, the Fifth Circuit in Caston stated that “a person’s
diligence in attempting to obtain a lawyer to assist him may properly be considered
by the district court in assessing the ‘justness’ in the application for counsel.” Id.
The Court also noted that Title VII awards the prevailing party his attorney’s fees
and noted that contingent fee arrangements are not uncommon in the civil rights
field. However, the Fifth Circuit also noted that “we do not suggest that a plaintiff
should be required to exhaust the legal directory before a court could appoint him
an attorney.” Id. On the third prong, the Fifth Circuit in Caston held that while the
statute “does not require that one be a pauper before counsel may be appointed, a
person’s financial resources should certainly be considered.” Id. at 1310.
In Gonzalez, the Fifth Circuit upheld the district court’s denial of a plaintiff’s
motion to appoint counsel in a Title VII claim by holding that, on balance, the
Caston factors weighed against the appointment of counsel. See Gonzalez, 907 F.2d
at 580. In that case, the district court properly “referr[ed] to the EEOC proceeding
that resulted in a rejection of Gonzales’s claims of discrimination and retaliation.”
Id. The Fifth Circuit held that the second Caston factor may arguably have been
satisfied because Gonzalez stated in his motion that he had unsuccessfully
contacted five attorneys and therefore “an appointment of counsel would not have
been rewarding Gonzalez for his own lack of diligence.” Id. For the third prong,
Gonzalez was “under no constraint which would inhibit his opportunity to
investigate the cause” because he was still employed and his take-home salary was
$1,650 per month. Id.
A pro se litigant’s briefs are afforded liberal construction. McCreary v.
Richardson, 738 F.3d 651, 655 (5th Cir. 2013) (citing Haines v. Kerner, 404 U.S.
519, 520–21 (1972)). The rationale here is that it “would be inequitable” to hold pro
se litigants to strict procedural standards and thereby punish such litigants “for

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lacking the linguistic and analytical skills of a trained lawyer.” Perez v. United
States, 312 F.3d 191, 194–95 (5th Cir. 2002). District courts should be sensitive to
the problems faced by pro se litigants and innovative in their responses to them.
Caston, 556 F.2d at 1310. Nonetheless, courts “still require pro se parties to
fundamentally ‘abide by the rules that govern the federal courts.’ ” E.E.O.C. v.
Simbaki, Ltd., 767 F.3d 475, 484 (5th Cir. 2014) (citing Frazier v. Wells Fargo Bank,
N.A., 541 Fed. App’x. 419, 421 (5th Cir. 2013)). The Fifth Circuit has held that pro
se litigants must, for example, properly plead sufficient facts that, when liberally
construed, state a plausible claim to relief, obey discovery orders, present summary
judgment evidence, file a notice of appeal, and brief arguments on appeal. Id. at
464.
III.

Analysis
The Court proceeds by analyzing King’s Motion for Appointment of Counsel

under the three-part Caston factors. See Gonzalez, 907 F.2d at 580; Caston, 556
F.2d at 1309.
A.

Merits of King’s Claims of Discrimination

Plaintiff represents that he believes his case to have merit under federal law.
Dkt. No. 34 at 1. In its response, Greene’s Energy notes that the EEOC dismissed
Plaintiff’s charge of employment discrimination against Greene’s Energy.
In a letter dated June 4, 2015 and signed by an EEOC Federal Investigator,
the EEOC provided:
Our review of your charge at this point indicates that it is
unlikely that further investigation will establish a violation of the laws
we enforce. The available information does not support a conclusion
that your race (black), color and/or retaliation were factors in the
alleged adverse employment action you experienced.
EEOC Letter, Dkt. No. 35, Ex. B.
The letter details findings from the EEOC investigation, including that while
King received “generally good marks on appraisals,” King received a warning for

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violating company rules and a write-up for insubordination, failure to follow
instructions, violation of safety rules, and violation of company rules in August
2011. Dkt. No. 35, Ex. B at 1. The letter also states that according to Greene’s
Energy, King resisted a dispatch in June 2013 and was unable to account for
charges on the company credit card for various purchases of unleaded fuel1 between
September 3, 2014 and January 30, 2015, for which Greene’s Energy filed charges
with the Jim Wells County Sheriff’s Office (“Sheriff’s Office”). Dkt. No. 35, Ex. B at
2. The EEOC investigator stated that “it appears [Greene’s Energy] had a valid nondiscriminatory reason for termination,” and provided King until June 14, 2015 to
furnish

additional

evidence

warranting

additional

investigation

of

his

discrimination claims. Id. at 2. There is no evidence in the record to suggest that
King submitted further evidence to the EEOC to prompt additional investigation of
his discrimination claims.
On June 25, 2015, the EEOC issued its determination regarding King’s Title
VII claim, which stated:
Based upon its investigation, 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.
EEOC Dismissal and Notice of Rights (“EEOC Dismissal”), Dkt. No. 35, Ex. A.
In his reply brief, King states that a finding of non-discrimination against
him is erroneous, arbitrary, and against the law because he was not allowed to take
unpaid leave despite Greene’s Energy affording days off to other similarly situated
non-African American employees. Dkt. No. 37 at 2. King reiterates his allegations
as set out in the initial complaint. Additionally, he attaches as an exhibit the
Sheriff’s Office Investigative Case Log (“Sheriff’s Office Case Log”) in support of his
position that no formal charges were filed against him. See Sheriff’s Office Case
The letter explains that Greene’s Energy contended that they only use diesel fuel. Dkt. No. 35, Ex.
B at 2.
1

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Log, Dkt. No 37 at 12 (“As of [M]arch 16, 2014[,] there are no further leads. If more
information becomes available[,] this case will be reopened.”). In his reply brief,
King also points out that on March 11, 2015, the Texas Workforce Commission
(“TWC”) made a determination granting King unemployment benefits because its
investigation found that he was terminated for reasons apart from misconduct. Dkt.
No. 37 at 3. King attaches as an exhibit the TWC Determination on Payment of
Unemployment Benefits. See TWC Determination, Dkt. No. 37 at 13 (“Our
investigation found that your employer fired you for a reason that was not
misconduct connected with the work.”). Plaintiff argues that the Sheriff’s Office
Case Log and TWC determination support his claim that he was wrongfully
terminated based on his race and color, rather than due to misconduct, as Greene’s
Energy argues. Id.
To prevail on prong one of the Caston factors, King would need to provide
evidence sufficient to outweigh the “highly probative” nature of the EEOC
determination. See Caston, 556 F.2d at 1309. The EEOC investigation found that
King was terminated after a series of incidents including a warning for violating
company rules, write-up for insubordination, failure to follow instructions, violation
of safety rules, violation of company rules, and resisting a dispatch. See EEOC
Letter, Dkt. No. 35, Ex. B at 1. The legal conclusions contained in the Sheriff’s
Office Case Log and the TWC determination are not sufficient to persuade the
Court that the EEOC did not have “substantial evidence,” see Caston, 556 F.2d at
1309, in its investigative findings and determination that King’s adverse
employment action was due to valid non-discriminatory reasons. Additionally, the
Court does not have before it the type or quality of evidence that the TWC
considered when it determined that King was terminated for “a reason that was not
misconduct connected with the work.” See TWC Determination, Dkt. No. 37 at 13.
In sum, this Court finds that the EEOC determination is supported by substantial
evidence. See Caston, 556 F.2d at 1309.

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B.

Efforts Taken by King to Obtain Counsel

On the second Caston factor, King represents that he has tried to the best of
his abilities to retain counsel but has failed to retain representation. Dkt. No. 34 at
1. Although King did have counsel at the outset of his civil suit, as a result of his
own actions, that representation ceased on April 18, 2016, as discussed in Section I,
supra.
Since then, King has claimed that he has found it “unreasonably difficult” to
retain counsel. Id. King attaches a letter from Thomas J. Henry (“Henry”) dated
September 28, 2016, which indicates that Henry handles personal injury suits. Dkt.
No. 37 at 15. King also states that he has tried to retain Tanning Law Firm,2 Hector
Gonzale[z], Burke’s Law Firm,3 and Ste[ph]en Chapman (“Chapman”),4 but
indicates that “they have all refuse[d] to represent me.” Dkt. No. 34 at 1.
Despite his statement that Chapman has refused to represent him, see id.,
King nevertheless attaches the first page of what is titled “Contingent Fee
Agreement” between King and Chapman Law Firm. See Dkt. No. 37 at 16. The
agreement states:
This Contract is between Joe King, and the Chapman Law Firm of
Corpus Christi, Texas, Attorney . . . . Client hereby employs said
attorney and authorizes and empowers them to institute, maintain and
prosecute the following claim:
Wrongful Termination/Discrimination – Against Greene’s Energy
Group.
Said attorney is hereby appointed agent and attorney-in fact to execute
in the name of and on behalf of the Client all necessary releases,
receipts, settlements, discharges, judgments or recoveries of whatever
nature, and generally do all things which in his judgment are requisite
to the handling of this matter.
Contingent Fee Agreement, Dkt. No. 37 at 16.
The Court notes that King may be referring to William J. Tinning, P.C.
The Court notes that King may be referring to Burkett Law Firm.
4 Stephen Chapman operates the Chapman Law Firm out of Corpus Christi, Texas. See Find a
Lawyer,
STATE
BAR
OF
TEXAS,
https://www.texasbar.com/AM/Template.cfm?Section=Find_A_Lawyer&template=/Customsource/Me
mberDirectory/MemberDirectoryDetail.cfm&ContactID=196631.
2
3

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The agreement provides that in consideration of the services rendered, the
Client agrees to an undivided forty percent (40%) interest in the case should the
case be filed in court. The agreement states that if the case is resolved prior to
filing, the Client agrees to convey to the attorney an undivided third (33-1/3%)
interest in the case. Id. Finally, “[i]n the event no recovery is had, no content
attorneys’ fees shall be due.” Id. The exhibit does not state on what date, if at all,
the Contingent Fee Agreement was executed because King filed only the first page
of the agreement.
Although King claims Chapman refused to represent him, the language of the
Contingent Fee Agreement exhibit implies otherwise. The document specifically
names King and the Chapman Law Firm and specifies that the contract is to
prosecute the claim of “Wrongful Termination/Discrimination – Against Greene’s
Energy Group.” The Court is unable to ascertain whether King or Chapman signed
the Contingent Fee Agreement, but the exhibit certainly appears to contradict
King’s assertion that Chapman refused to represent him, especially because it
names with particularity the parties to the instant suit. King has not provided an
explanation for this inconsistency. The Court thus finds that King has not met his
burden of persuasion regarding his efforts to obtain counsel. See Caston, 556 F.2d at
1310.
C.

King’s Financial Ability to Retain Counsel

King represents that he has “no funds” and is currently “disable[d]” with “no
way of obtaining substit[ution] of counsel.” Dkt. No. 34 at 1. Greene’s Energy does
not dispute this contention. The Court recognizes that the King is not to be “saddled
with formalized requirements” such as the filing of affidavits or other statements as
to his current income. See Caston, 556 F.2d at 1310. Therefore, on the third Caston
prong, the Court finds that King has demonstrated that he has financial constraints
which may inhibit his opportunity to investigate his Title VII claim. See Gonzalez,
907 F.2d at 580.

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IV.

Conclusion
Taking into account the Fifth Circuit case law and weighing the Caston

factors, this Court holds that, on balance, the Caston factors weigh against the
appointment of counsel for King.
The Court thus DENIES King’s Motion for Appointment of Counsel, Dkt. No.
34. The Court ORDERS that King has until and including March 24, 2017 in
which to cause a notice of appearance to be filed by retained counsel, or to otherwise
update the Court if he intends to proceed pro se.
The Court GRANTS King’s September 13, 2016 motion to extend time to file
his reply brief, Dkt. No. 36, and thus finds that his October 12, 2016, reply brief,
Dkt. No. 37, was timely filed.
The Court also DIRECTS the Clerk of the Court to send this Order via
certified mail to Joe E. King at the address on file with the Court.
SIGNED this 27th day of February, 2017.
___________________________________
Hilda Tagle
Senior United States District Judge

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