Pickett v. Chi. Transit Auth.

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-2785
LAWRENCE L. PICKETT,
Plaintiff-Appellant,
v.
CHICAGO TRANSIT AUTHORITY,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 16 C 4337 — Charles P. Kocoras, Judge.
____________________
ARGUED JULY 10, 2019 — DECIDED JULY 17, 2019
____________________
Before EASTERBROOK, BARRETT, and BRENNAN, Circuit
Judges.
EASTERBROOK, Circuit Judge. In 2015 a passenger on a bus
operated by the Chicago Transit Authority screamed at and
threatened Lawrence Picke[, the driver. He took six months
off from work while recovering. After his physician conclud-
ed that he could return to work (though not as a driver),
Picke[ appeared one morning and requested a light-duty
job. He was given one by the personnel on duty, but four
2 No. 18-2785
days later he was told that the CTA was not ready to permit
his return to work.
Picke[ previously had been told that before returning to
work he needed to complete a form (which was enclosed
with the le[er) and report to CTA’s Leave Management Ser-
vices office, which would administer some tests (including a
drug screen). He ignored those directions and simply
showed up at his former workplace, where a supervisor
gave him work pending advice from management. The ad-
vice, when received, turned out to be a direction that Picke[
go home until he had done as instructed—fill out the form
and report to Leave Management Services. Picke[ did not
follow those directions until 2017. He was then approved for
work and retired five days later.
Before visiting Leave Management Services in 2017 he
had filed with the EEOC a charge of age discrimination.
Picke[ says that during 2015 he saw three or four persons
younger than himself doing light-duty tasks. The CTA re-
moved him, the eldest of the group, and he believes that it
left the others at work. After receiving his right-to-sue le[er,
Picke[ began litigation under the Age Discrimination in
Employment Act, 29 U.S.C. §§ 621–34. The district court
granted summary judgment to the CTA. 2018 U.S. Dist. LEXIS
119454 (N.D. Ill. July 18, 2018). (That opinion, and one earlier
order, 2017 U.S. Dist. LEXIS 66873 (N.D. Ill. May 2, 2017), ad-
dress several theories in addition to the age-discrimination
claim, but all of those other theories have been abandoned.)
Picke[’s principal contention on appeal is that the district
court should have recruited counsel to represent him. He
filed one motion for counsel, to which the judge replied:
“Picke[s [sic] Motion for A[orney representation is denied
No. 18-2785 3
at this time.” That was it. No explanation. Pro bono counsel
representing Picke[ on appeal accurately observes that we
have told district judges that explanations are essential.
Prui8 v. Mote, 503 F.3d 647, 660 (7th Cir. 2007) (en banc);
McCaa v. Hamilton, 893 F.3d 1027, 1033 (7th Cir. 2018). How
else would an unrepresented litigant know what more must
be done to obtain judicial assistance? Prui8 and later cases
set out considerations that bear on the proper exercise of dis-
cretion, but without an explanation how can this court de-
termine whether the district judge has abused that discre-
tion? A few words might have sufficed, but the judge left
both Picke[ and this court in the dark.
It is not hard to imagine what those few words might
have been. The judge might have pointed out that Picke[
had not provided a complete financial disclosure, so the rec-
ord did not show inability to afford counsel. See 28 U.S.C.
§1915(e)(1). Picke[ doubtless has retirement income from
Social Security as well as his former employers. He paid the
filing fee in the district court.
Or the judge might have observed that Picke[ did not
describe why he had been unable to hire counsel. A litigant’s
good faith but unsuccessful effort to obtain counsel is a nec-
essary condition to the provision of judicial assistance to re-
cruit a lawyer. See Prui8, 503 F.3d at 654. Picke[ told the dis-
trict judge that he had approached four lawyers without
success, but he did not say why they declined to represent
him. Was it his unwillingness or inability to pay a retainer?
Unwillingness and inability have different implications for
the propriety of judicial aid. Was it that the four lawyers
lacked the time to take new clients, given other commit-
ments? Was it that the lawyers he approached were unfamil-
4 No. 18-2785
iar with age-discrimination law? Specialization in the bar
contributes to good legal representation, and someone seek-
ing to litigate an age-discrimination case needs to consult
lawyers who practice this specialty—of which Chicago has
many. Was it perhaps that they deemed Picke[’s claim too
weak to justify litigation? If lawyers misunderstood Picke[’s
contentions because he is inarticulate, then a judge might
have a useful role to play in recruiting counsel, but if Picke[
conveyed his situation well and counsel deemed the claim
feeble, then it would be inappropriate for a court to inter-
vene. Why should a judge ask lawyers to devote less of their
time to people with strong cases and more to people with
weak ones? That would injure other litigants.
Or the judge might have observed that Picke[ filed his
motion so early in the case that it was impossible to tell
whether he could represent himself adequately. A litigant’s
competence to present his claim without a lawyer’s aid is
another of the considerations that ma[er under Prui8. See
503 F.3d at 654. Perhaps this is what the judge meant when
he said that he would not help Picke[ “at this time.” Picke[
did not file a second motion for judicial assistance in obtain-
ing counsel.
Finally, the judge might have thought it significant that
the Age Discrimination in Employment Act has a fee-shifting
clause. 29 U.S.C. §626(b), incorporating 29 U.S.C. §216(b).
A[orneys who represent successful plaintiffs can anticipate
full compensation from the employer, whether or not the cli-
ent can afford to pay. Prui8 concerned a prisoner’s suit un-
der 42 U.S.C. §1983, and although 42 U.S.C. §1988 provides
for fee-shifting in §1983 suits, the fees that can be awarded in
prisoner litigation are limited by 42 U.S.C. §1997e(d). See
No. 18-2785 5
Johnson v. Daley, 339 F.3d 582 (7th Cir. 2003) (en banc). Be-
cause of that cap, we did not consider in Prui8 how statutes
that provide for a prevailing plaintiff to collect a fully com-
pensatory fee affect the circumstances under which judges
should try to recruit lawyers for indigent plaintiffs. Nor need
we consider the subject here, given the other considerations
already mentioned. But it deserves a[ention in cases where
it may make a difference.
The district judge should have said one or more of these
things. Denying the motion without explanation was an er-
ror, but a harmless error. See Pennewell v. Parish, 923 F.3d
486, 490–92 (7th Cir. 2019). It is enough for us to say that,
even with the assistance of counsel on appeal, Picke[ has not
shown how a lawyer could have helped him overcome his
biggest obstacle: he never took the steps that the CTA told
him were essential. The CTA told Picke[ to fill out a form
and report to Leave Management Services for a drug test
and other evaluation. He did not do so. Even after being re-
moved from the position to which he had been assigned
while a supervisor checked on his eligibility, Picke[ failed to
follow these instructions for more than a year.
Proof that the younger workers Picke[ saw in light-duty
positions had been allowed to bypass those administrative
steps would support an age-discrimination claim. But Picke[
has not alleged this. This means that he does not have any
route to success, for he could not show that his age caused
an adverse effect. The absence of counsel was harmless, and
the claim on the merits was properly rejected by the district
judge.
AFFIRMED