Thomas v. Washington Metropolitan Area Transit Authority , 907 F. Supp. 2d 144 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ERNEST ALPHONSO THOMAS, :
:
Plaintiff, : Civil Action No.: 11-1998 (RC)
:
v. : Re Document Nos.: 17, 19, 24
:
WASHINGTON METROPOLITAN :
AREA TRANSIT AUTHORITY :
:
Defendant. :
MEMORANDUM OPINION
DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING
IN PART DEFENDANT’S PARTIAL MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S MOTION TO APPOINT COUNSEL
I. INTRODUCTION
Plaintiff, Earnest Thomas, is an employee with the Washington Metropolitan Area
Transit Authority (“WMATA”) who claims that he was passed over for several promotions
based on his race (black), national origin (African), age (56 at time of the complaint) and that he
was retaliated against for complaining about his discriminatory treatment in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII") and the Age
Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”). WMATA has filed a
partial motion for summary judgment arguing that: one of plaintiff’s Title VII claims is untimely
because he failed to file a “charge” with the Equal Employment Opportunity Commission
(“EEOC”) within 180 days of the alleged discriminatory act; plaintiff’s Title VII retaliation
claim is premature because plaintiff has not yet received a right to sue letter from the EEOC;
and, all of plaintiff’s ADEA claims fail because WMATA is not subject to liability under the
ADEA because it is entitled to Eleventh Amendment immunity. [Docket No. 24]. For his own
part, plaintiff has also filed a motion for summary judgment claiming that he is entitled to
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judgment as a matter of law on his discrimination claims. [Docket No. 19]. Additionally,
plaintiff, who appears pro se, has moved the Court to appoint him counsel. [Docket No. 17]. For
the reasons set forth below, plaintiff’s motion for summary judgment is DENIED, defendant’s
partial motion for summary judgment is GRANTED in part and DENIED in part, and plaintiff’s
motion to appoint counsel is GRANTED in part and DENIED in part.
II. FACTUAL ALLEGATIONS & PROCEDURAL BACKGROUND
Since June 20, 2005, plaintiff has been employed as a “D Mechanic - Electrical” in
WMATA’s Rail Car Maintenance Department. Complaint at ¶ 3. In 2009, plaintiff applied for
two promotions: Vehicle Engineer (Job Vacancy No. 090834) and Senior Vehicle Engineer (Job
Vacancy No. 090350). Complaint at ¶ 8. He was not interviewed for either position and other
individuals were selected.
On March 18, 2010, plaintiff wrote a letter to the EEOC concerning his allegations of
discrimination. Plaintiff’s Response to Defendant’s Opposition to Plaintiff’s Motion for
Summary Judgment and Cross-Motion for Partial Summary Judgment [Docket No. 26], Exhibit
3. In that letter, plaintiff claimed that he was discriminated against when he was not selected for
the two above-referenced positions. Id. He wrote that, by submitting the letter, he wanted to file
a complaint based on race, national origin and age discrimination and that he was “filing th[e]
complaint” at that time “in order to observe the statute of limitation[s] of 180 days and accelerate
the process . . . .” Id. Based on that letter, the EEOC prepared a charge form that plaintiff signed
on April 29, 2010 and that the EEOC received on May 4, 2010 (Charge No. 570-2010-01090).
Defendant WMATA’s Opposition to Plaintiff’s Motion for Summary Judgment and Cross-
Motion for Partial Summary Judgment (“WMATA Mtn./Opp.”) [Docket No. 24], Exh. 1 at 31-
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32; Exh. 2. After more than 180 days since the EEOC assumed jurisdiction over the charge, on
August 18, 2011, the EEOC sent plaintiff a right to sue letter on that charge. Id. at Exh. 3.
Later in 2010, plaintiff applied for a Senior Electrical Engineer position and was
interviewed for that position on September 22, 2010. Complaint at ¶ 27; Docket 24, Exh. 4. He
was informed on December 29, 2010 that he had not received this position. Id. On March 21,
2011, the EEOC received the charge form from plaintiff concerning this non-selection. Docket
24, Exh. 4.1
Plaintiff filed the current action on November 14, 2011. Plaintiff alleges that he was
passed over for a number of promotions because of his race, national origin, age, and retaliation.
The non-selections at issue can be broken down into three categories: 1) a number of unspecified
non-selections going back to 2005 for which plaintiff never filed an EEOC charge; 2) the two
non-selections included in plaintiff’s first EEOC charge; and 3) the non-selection resulting in the
retaliation claim at issue in plaintiff’s second EEOC charge. For the reasons set forth below,
plaintiff’s Title VII claims which were included in the two EEOC charges survive, and all others
are dismissed. Additionally, all of plaintiff’s ADEA claims are dismissed. Moreover, plaintiff’s
motion for appointment of counsel is granted in part and counsel shall be appointed from this
Court’s pro bono panel for the sole purpose of pursuing mediation.
III. ANALYSIS OF DISCRIMINATION/RETALIATION CLAIMS
The plaintiff has moved for summary judgment on all of his discrimination and
retaliation claims, asserting that he is entitled to judgment as a matter of law. [Docket No. 19].
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There are a number of different dates on this form, including an apparent signature date of
October 15, 2011. But because defendant has not addressed this issue, the Court relies upon the date
stamp from the EEOC.
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The defendant has moved for summary judgment on some of the plaintiff’s claims, arguing that
some are untimely and that WMATA is not subject to age claims pursuant to the ADEA. Each
of these motions are addressed below.
A. Legal Standard for a Motion for Summary Judgment
Summary judgment may be granted when "the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.
R. Civ. P. 56(a). A fact is "material" if it is capable of affecting the substantive outcome of the
litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is "genuine" if
sufficient evidence exists such that a reasonable jury could return a verdict for the non-moving
party. See Scott v. Harris, 550 U.S. 372, 380 (2007).
The principal purpose of summary judgment is to streamline litigation by disposing of
factually unsupported claims or defenses and determining whether there is a genuine need for
trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The moving party bears the initial
responsibility of identifying those portions of the record which demonstrate the absence of any
genuine issue of material fact. Id. at 323; Fed. R. Civ. P. 56(c)(1)(A) (noting that the movant
may cite to "depositions, documents, electronically stored information, affidavits or declarations,
. . . admissions, interrogatory answers, or other materials"). In response, the non-moving party
must similarly designate specific facts in the record that reveal a genuine issue that is suitable for
trial. Celotex, 477 U.S. at 324. On a motion for summary judgment, the court must "eschew
making credibility determinations or weighing the evidence," Czekalski v. Peters, 475 F.3d 360,
363 (D.C. Cir. 2007), and all underlying facts and inferences must be analyzed in the light most
favorable to the non-moving party, Anderson, 477 U.S. at 255. Nevertheless, conclusory
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assertions offered without any evidentiary support do not establish a genuine issue for trial.
Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).
B. Plaintiff’s Motion for Summary Judgment is Denied
The plaintiff has moved for summary judgment in his favor. Because the typical Title
VII discrimination or retaliation case is premised on the employer’s subjective motivations, the
critical issue concerns what was taking place in the subject individuals’ minds. Thus, if the
individuals who allegedly took the discriminatory/retaliatory acts deny that discrimination or
retaliation motivated their actions, because no one else knows precisely what went on inside their
minds, it is difficult (if not impossible) for there not to be a question of fact as to what actually
motivated them. Consequently, summary judgment in favor of a plaintiff in a discrimination or
retaliation case is exceedingly rare. This is no exception.
Plaintiff supports his entire motion on the report issued as a result of WMATA’s internal
investigation of his allegations. See generally Motion for Summary Judgment in Favor of
Plaintiff (“Pltf's MSJ"). [Docket 19]. WMATA argues that plaintiff’s motion should be denied
because the internal report is not admissible as it is hearsay or, alternatively, its prejudicial effect
outweighs its probative value. WMATA Mtn./Opp. at 2-4. Because the Court need not make
that evidentiary ruling at this time, it defers that question until trial. Even if the report were
admissible, it would not entitle plaintiff to judgment as a matter of law.
In WMATA’s internal report, WMATA identified several problems with the non-
selections at issue but did not conclude that discrimination or retaliation had occurred. Pltf's
MSJ, Exh. I. Thus, because there is no conclusion that discrimination occurred, all that the
report could establish is that problems existed in the selection processes utilized during the non-
promotions at issue. But that is not enough to establish liability under Title VII. See Fischbach
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v. D.C. Dep't of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996) (“[a]n employer's failure ‘to follow
its own regulations and procedures, alone, may not be sufficient to support’ the conclusion that
its explanation for the challenged employment action is pretextual” (quoting Johnson v. Lehman,
679 F.2d 918, 922 (D.C. Cir. 1982))); Kennedy v. D.C. Gov't, 519 F. Supp. 2d 50, 63 (D.D.C.
2007) (poor selection process not sufficient evidence absent “demonstrably discriminatory
motive”). “The irregularities in the process even if proven must indicate a discriminatory
motive.” Boone v. Clinton, 675 F. Supp. 2d 137, 148-49 (D.D.C. 2009); Butler v. Ashcroft, 293
F. Supp. 2d 74, 79-80 (D.D.C. 2003). Plaintiff has not provided any evidence of discriminatory
intent beyond the purported irregularities or failures to follow policy. Because defendant’s
employees deny that they discriminated against plaintiff, a question of fact exists as to what
motivated them. Accordingly, plaintiff has not established his case as a matter of law and his
motion for summary judgment must be denied.
C. Defendant’s Motion for Summary Judgment is Granted in Part and Denied in Part
Plaintiff has brought claims concerning a number of promotions he claims he was denied
based on discrimination and/or retaliation. His discrimination claims are partly brought pursuant
to Title VII’s prohibition of discrimination based on race and national origin, and partly brought
pursuant to the ADEA’s prohibition of age discrimination. Defendant argues in its motion for
summary judgment that some, but not all, of plaintiff’s Title VII claims were not exhausted
before the EEOC, are included in an EEOC charge that was not timely submitted, or are
premature because the EEOC did not issue a right to sue letter. Additionally, defendant argues
that plaintiff’s ADEA claims fail as WMATA is not subject to suit pursuant to the ADEA
because of WMATA’s Eleventh Amendment immunity. Each of these arguments are addressed
below.
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D. Plaintiff’s Title VII Discrimination & Retaliation Claims
As set forth above, plaintiff alleges that he was passed over for a number of promotions
because of his race, national origin, and retaliation. The non-selections at issue can be broken
down into three categories: 1) a number of unspecified non-selections going back to 2005 for
which plaintiff never filed an EEOC charge; 2) the two non-selections included in plaintiff's first
EEOC charge; and 3) the non-selection resulting in the retaliation claim at issue in plaintiff's
second EEOC charge. WMATA argues that: the non-selections going back to 2005 have not
been exhausted; one of the two non-selections included in plaintiff’s first EEOC charge is
untimely; and, the retaliation claim included in the second EEOC charge is premature because
plaintiff has not received a right-to-sue letter. For the reasons set forth below, the Court
concludes that plaintiff’s claims concerning non-selections going back to 2005 are untimely and
unexhausted, both claims contained in plaintiff’s first EEOC charge are timely, and plaintiff can
pursue his retaliation claim despite not having received a right to sue letter.
The EEOC has broad authority to enforce Title VII’s mandates, and the EEOC has
established detailed procedures for the administrative resolution of discrimination complaints.
Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997). “Complainants must timely
exhaust these administrative remedies before bringing their claims to court.” Id. In particular,
Title VII requires that plaintiffs file an EEOC charge within a certain time period of the allegedly
unlawful act. 42 U.S.C. § 2000e-5(e)(1). Specifically, the statute states:
(e) Time for filing charges; time for service of notice of charge on respondent; filing of
charge by Commission with State or local agency; seniority system
(1) A charge under this section shall be filed within one hundred and eighty days after the
alleged unlawful employment practice occurred and notice of the charge (including the
date, place and circumstances of the alleged unlawful employment practice) shall be
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served upon the person against whom such charge is made within ten days thereafter,
except that in a case of an unlawful employment practice with respect to which the
person aggrieved has initially instituted proceedings with a State or local agency with
authority to grant or seek relief from such practice or to institute criminal proceedings
with respect thereto upon receiving notice thereof, such charge shall be filed by or on
behalf of the person aggrieved within three hundred days after the alleged unlawful
employment practice occurred, or within thirty days after receiving notice that the State
or local agency has terminated the proceedings under the State or local law, whichever is
earlier, and a copy of such charge shall be filed by the Commission with the State or local
agency.
42 U.S.C. § 2000e-5(e). Moreover, for discrete acts of discrimination such as the failures to
promote at issue here, a plaintiff must file an EEOC charge for each non-selection within 180 or
300 days (whichever applies) of the non-selection. Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101 (2002). Guided by these principles, the Court addresses each of defendant’s arguments.
1. Non-Selections Going Back to 2005
Although not explicitly in his complaint, plaintiff suggests that he is entitled to pursue
discrimination claims for promotions he was denied all the way back to 2005. Pltf’s MSJ at 2-4.
Plaintiff’s theory is based on the fact that, apparently, WMATA for several years utilized a job
announcement for entry level positions that erroneously stated that six years of engineering
experience was required. Pltf’s MSJ, Exh. I at 2-6. Because of the use of this apparently
erroneous job posting that was created in 2005, plaintiff claims that he was discriminated against
going back to the point in 2005 when he began applying for vehicle engineering positions. Pltf’s
MSJ at 4. Although there is no evidence that plaintiff ever submitted an EEOC charge based on
these older non-selections (WMATA Mtn./Opp., Exh. 1 at 31 [EEOC charge received on May 4,
2010 is the first EEOC charge plaintiff submitted]), plaintiff argues that such claims are timely
based on Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). Pltf’s MSJ at 4.
However, in Morgan, the Supreme Court held just the opposite. Because a non-selection of the
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kind of which plaintiff complains is considered a discrete act, plaintiff had to submit a timely
EEOC charge after each one. Morgan, 536 U.S. at 102. Because there is no evidence that he
did, these claims are not administratively exhausted and are untimely. As such, they are
dismissed.
2. Two Non-Selections Included in Plaintiff's First EEOC Charge
Plaintiff’s first EEOC charge complained about discrimination in two non-selections.
WMATA argues that claims involving at least one of these non-selections are untimely.
WMATA Mtn./Opp. at 4. The record before the Court on these two non-selections is not at all
clear. Regardless, as set forth below, the Court concludes that the EEOC charge on these claims
was timely submitted. Accordingly, these claims survive summary judgment and shall proceed
to trial.
Plaintiff has complained about two non-selections that were included in his first EEOC
charge. The record concerning each of these non-selections, as can best be deciphered, is set
forth below:
Vehicle Engineer (090834): This position appears to have been posted from November
7, 2009 to December 1, 2009. Pltf’s MSJ, Exh. III (PACER page 19 of 82). Interviews appear
to have been conducted from January 19, 2010 to January 28, 2010. Pltf's MSJ, Exh. II (PACER
page 20 of 82). It also appears that candidate Ever Diaz was selected on March 15, 2010. Id. at
Exh. III.
Senior Vehicle Engineer (090350): This position appears to have been posted from July
9, 2009 to July 22, 2009. Pltf’s MSJ, Exh. III (PACER page 19 of 82). The record before the
Court does not reflect when interviews were conducted. It appears that candidate Jun Deng was
selected for the position. Id. That selection may have been made on January 18, 2010. Id.;
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Plaintiff’s Second Response to Defendant’s Opposition to Plaintiff’s Motion for Summary
Judgment and Cross-Motion for Partial Summary Judgment [Docket No. 29], Attach. A.
WMATA moves to dismiss plaintiff’s claims based on one or both of these non-
selections. WMATA’s short and straight-forward argument on this point is that: 1) plaintiff has
stated in his Complaint that he was discriminated against on October and December 2009; 2) he
did not file an EEOC charge until May 4, 2010; 3) Title VII requires that an EEOC charge
involving WMATA must be filed within 180 days; 2 and, 4) there are more than 180 days
between October 2009 and May 4, 2010. WMATA Mtn./Opp. at 4 citing Complaint at ¶ 8.
There are a couple of problems with this argument.
First, as the chronology set forth above makes clear, neither position appears to have been
filled until 2010. Because plaintiff was not interviewed for either position, he was probably
aware that he would not be selected for the positions before the selections were made. But the
ultimate selection decision did not occur until the position was filled. The parties have not
briefed whether the claim accrued on the date he learned he was not being interviewed or the
date the position was filled.
Second, WMATA’s argument assumes that the EEOC charge form submitted on May 4,
2010 necessarily constitutes the EEOC charge for purposes of calculating the deadline. To the
contrary, the Supreme Court has stated that a “charge” can be an informal document so long as
an objective observer would conclude that the filer requests that the agency activate its
machinery and remedial processes. Federal Express Corp. v. Holowecki, 552 U.S. 389, 402-03
(2008). Under this guidance, courts have concluded that letters of the variety sent by plaintiff in
2
Because plaintiff does not challenge this proposition, the Court assumes without deciding that the
statute requires that an EEOC charge involving WMATA must be submitted within 180 days (rather than
300 days) of the allegedly discriminatory act. 42 U.S.C. § 2000e-5(e)(1).
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this case qualify as charges. Tucker v. Howard Univ. Hosp., 764 F. Supp. 2d 1, 6-8 (D.D.C.
2011) (letter from filer’s counsel accompanied by EEOC questionnaire qualify as charge); see
also Edelman v. Lynchburg College, 535 U.S. 106 (2002) (letter from filers can qualify as charge
in remedial scheme in which laypersons, rather than lawyers, are expected to initiate the
process). Although WMATA argues that the March letter should not be deemed as a charge, it
does not address the relevant standards. 3 The language that plaintiff included in his letter
indicating that he wanted to file a complaint based on race, national origin and age
discrimination and that he was "filing th[e] complaint" at that time "in order to observe the
statute of limitation[s] of 180 days and accelerate the process" would lead an objective observer
to conclude that he was requesting that the agency activate its machinery and remedial processes.
Accordingly, because this letter qualifies as a “charge,” in order to be timely, plaintiff’s non-
selection claim must have accrued within 180 days of this March 18, 2010 letter. Thus, even a
claim that accrued in October would have been timely submitted. Consequently, both of
plaintiff’s claims included in his first EEOC charge are timely and survive summary judgment.
3. Non-Selection Resulting in Plaintiff's Second EEOC Charge
Plaintiff alleges that, subsequent to complaining about discrimination concerning his
prior non-selections, he was passed over for yet another promotion in retaliation for his protected
activity. See generally Complaint at ¶¶ 27-28. As a result of this alleged retaliation, plaintiff
submitted a second EEOC charge. WMATA Mtn./Opp., Exh. 1 at 44-45; Exh. 4. Although
WMATA has not explicitly moved to dismiss this claim, it has suggested that because the EEOC
has not provided plaintiff with a right to sue letter, a claim premised on this retaliation EEOC
3
WMATA suggests that the fact that the Holowecki case was an ADEA case should make some
difference in the analysis. It does not. Beckham v. Nat’l Railroad Passenger Corp., 590 F. Supp. 2d 82,
86 (D.D.C. 2008).
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charge may be premature. WMATA Mtn./Opp. at 2 (noting that, upon information and belief,
the EEOC has not acted on plaintiff’s second EEOC charge containing the retaliation claim),
Exh. 1 at 44-45 (questioning plaintiff during his deposition whether he had received a right to
sue notice for his second charge). If WMATA suggests that plaintiff cannot pursue claims
included in an EEOC charge because he failed to obtain a right to sue letter, it is mistaken.
Simms v. District of Columbia, 699 F. Supp. 2d 217, 228 (D.D.C. 2010) (allowing plaintiff to
pursue discrimination claim despite lack of right to sue letter because the EEOC had failed to act
on her complaint within 180 days). Plaintiff submitted his EEOC charge on the retaliation claim
in March 2011 (WMATA Mtn./Opp., Exh. 4) and, more than 180 days later, on November 14,
2011, he filed the current action. Accordingly, plaintiff has a viable retaliation claim that he can
pursue at trial.
E. Plaintiff’s Age Discrimination Claims
Plaintiff also claims that he was denied the promotions addressed above because of
discrimination based on his age. Although pro se plaintiff’s complaint does not explicitly so
state, this claim is presumably premised on the Age Discrimination in Employment Act. 29
U.S.C. § 621 et seq. Defendant, in fact, has interpreted the claims in such manner. See
WMATA Mtn./Opp. at 4-5.
In its motion for summary judgment, WMATA argues “that a suit for monetary damages 4
cannot be maintained against WMATA under the [ADEA].” Id. In support of that position,
WMATA cites the D.C. Circuit’s opinion in Jones v. WMATA, 205 F.3d 428 (D.C. Cir. 2000).
In Jones, the Circuit held that because “WMATA was created by a compact enacted by the
4
Although WMATA refers only to a suit for monetary damages, it is clear that any Eleventh
Amendment immunity would also apply to injunctive relief. See Bailey v. WMATA, 696 F. Supp. 2d 68,
72 (D.D.C. 2010).
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Congress and to which the Commonwealth of Virginia, the State of Maryland and the District of
Columbia are signatories,” the signatory states conferred their Eleventh Amendment immunity
upon WMATA, “which therefore enjoys, to the same extent as each state, immunity from suit in
federal court based on its performance of governmental functions.” Id. at 432. Such
governmental function immunity encompasses personnel decisions concerning WMATA
employees. Id. Consequently, because the Supreme Court in Kimel v. Florida Bd. of Regents,
528 U.S. 62 (2000), definitively held that Congress did not abrogate the states’ Eleventh
Amendment immunity from ADEA liability because its attempt to abrogate such immunity
exceeded its authority under § 5 of the Fourteenth Amendment, the D.C. Circuit concluded that
WMATA was entitled to the same immunity from ADEA liability. Id. Plaintiff does not
directly address nor distinguish this controlling authority. Accordingly, plaintiff’s age
discrimination claims against WMATA must be dismissed.
IV. MOTION FOR APPOINTMENT OF COUNSEL
The plaintiff has moved the Court for appointment of counsel. [Docket No. 17]. This is
the third time plaintiff has moved for such appointment. [Docket Nos. 2 & 6]. The prior two
motions were denied. The first motion was denied because plaintiff provided almost no
information supporting the request. [Docket No. 5]. The second motion was denied because
plaintiff failed to demonstrate that he lacked the financial resources to hire an attorney (he
seemed to have the resources but would rather spend it on his children’s college tuition) and
there was no evidence in the record that plaintiff’s claims would be meritorious. [Docket No. 7].
His current motion seems to contain no new information. But, as set forth above, most of
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plaintiff’s claims are now heading to trial. As such, the Court must take a fresh look at this
request.
A plaintiff in a civil case does not have a constitutional right to counsel. Willis v. FBI,
274 F.3d 531, 532-33 (D.C. Cir. 2001). However, Title VII contains a specific provision
allowing for the appointment of counsel. The appointment of counsel provision provides:
Upon 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.
42 U.S.C. § 2000e-5(f)(1). In considering motions for appointment of counsel under Title VII,
courts in this Circuit consider several factors: “‘(1) the ability of the plaintiff to afford an
attorney; (2) the merits of the plaintiff’s case; (3) the efforts of the plaintiff to secure counsel;
and (4) the capacity of the plaintiff to present the case adequately without aid of counsel.’”
Robinson-Reeder v. Amer. Council on Educ., 626 F. Supp. 2d 11, 16 (D.D.C. 2009) (quoting
Poindexter v. FBI, 737 F.2d 1173, 1185 (D.C. Cir. 1984)); see also Willis, 274 F.3d at 532(noting that “the local rule [83.11] differs only slightly from the Poindexter factors”). The Court
considers each of these factors below.
First, plaintiff has provided no new information concerning his financial resources or his
attempts to obtain counsel. Perhaps now that his case is headed to trial, attempts to locate
counsel willing to take the case, at least in part, on a contingency basis might be more fruitful.
Second, because plaintiff’s case is now heading to trial, the potential of ultimately prevailing in
the matter is greater. Although WMATA’s internal investigation of plaintiff’s claims did not
conclude that plaintiff was the victim of discrimination, it certainly flagged several problems
with the manner in which the positions were filled. A reasonable jury could reach a different
conclusion based on the same facts. Third, it is not clear whether plaintiff has made additional
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attempts to secure counsel since the last motion to appoint counsel was denied. Again, new
attempts at securing counsel subsequent to this decision may prove more fruitful. Finally,
because this matter is heading to trial, although plaintiff has proved himself to be both intelligent
and articulate, trial in federal court is generally not within the abilities of a layperson and the
Court believes that the plaintiff would have difficulty presenting the case adequately without the
aid of counsel.
Based on these factors, some of which weigh in favor of appointment and some which
weigh against, the Court concludes that, at this time, it will appoint counsel for the sole purpose
of mediation. If mediation proves unsuccessful and if plaintiff has made additional unsuccessful
attempts to locate counsel, the Court at that time will entertain a new motion for appointment of
counsel for purposes of trial.
V. CONCLUSION
For the foregoing reasons, plaintiff’s motion for summary judgment is DENIED.
Defendant’s partial motion for summary judgment is GRANTED in part and DENIED in part.
Plaintiff’s motion to appoint counsel is GRANTED in part and DENIED in part. An Order
consistent with this Memorandum Opinion is separately and contemporaneously issued this 6th
day of December, 2012.
RUDOLPH CONTRERAS
United States District Judge
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