Lawrence Pickett v. CTA , 930 F.3d 869 ( 2019 )


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  •                               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
    

Document Info

Docket Number: 18-2785

Citation Numbers: 930 F.3d 869

Judges: Easterbrook

Filed Date: 7/17/2019

Precedential Status: Precedential

Modified Date: 1/12/2023