Annie Burton v. CTA ( 2022 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. APP. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 23, 2022*
Decided June 24, 2022
Before
DIANE S. SYKES, Chief Judge
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 21-2802
ANNIE BURTON, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of
Illinois, Eastern Division.
v.
No. 17-cv-08508
CHICAGO TRANSIT AUTHORITY, et
al., Martha M. Pacold,
Defendants-Appellees. Judge.
ORDER
Annie Burton, an African-American woman over the age of 45, sued her former
employer, the Chicago Transit Authority (“CTA”) for discrimination based on her race,
age, and disability and retaliation based on complaints of discrimination. Her amended
complaint was dismissed for failure to state a claim, on the defendants’ motion. On
*After examining the briefs and record, we have concluded that the appeal is
appropriate for decision without oral argument. See FED. R. APP. P. 34(a)(2).
No. 21-2802 Page 2
appeal, Burton contests only the denial of her two motions for the recruitment of pro
bono counsel. Because Burton does not tell us why the rulings were erroneous or how
she was prejudiced, we affirm.
We accept Burton’s well-pleaded facts as true. See Zahn v. N. Am. Power & Gas,
LLC, 815 F.3d 1082, 1087 (7th Cir. 2016). Burton worked as a CTA bus driver from 2013
to 2017. In October 2016, a vehicle crashed into her bus. She was taken to the hospital
and later asked a supervisor to drive her home. On the way, the supervisor locked the
car doors and, instead of taking her straight home, drove her to meet another CTA
employee. The complaint does not describe where they went or what happened, but
four days later, the CTA suspended Burton for refusing to take a drug and alcohol test
after the accident. Burton challenged the CTA’s handling of these events through an
internal process and by filing charges with state and federal agencies.
Then, in November 2017, Burton sued the CTA and four employees. She alleged
that the defendants suspended her in retaliation for filing complaints and discriminated
against her because of her race, age, and disability (arthritis). Shortly after the
defendants moved to dismiss her complaint, Burton asked the district judge—the first
of two who would preside over her case—to recruit an attorney for her. After a status
hearing, the judge allowed Burton to amend her complaint, and the defendants again
moved to dismiss. Once Burton filed her response brief, the judge denied the motion for
attorney representation “without prejudice to renewal after the Court rules on
defendants’ motion to dismiss.” He did not explain this ruling further.
The judge then granted the defendants’ motion to dismiss without prejudice,
explaining that Burton had failed to plausibly allege that the defendants took any action
out of unlawful animus. The judge advised Burton to “describe in reasonable detail the
events that gave rise to her contention that defendants discriminated against her.” A
few weeks later, Burton simultaneously filed her second amended complaint—
repleading her claims and adding the allegation that the CTA unlawfully terminated
her employment after she sued—and another motion for attorney representation.
Again, the defendants moved to dismiss the complaint.
During briefing, the case was reassigned to the initial civil docket of a newly
appointed district judge. After a status hearing, the judge denied Burton’s pending
motion for attorney representation “without prejudice to renewal after the Court rules
on Defendants' motion to dismiss.” The judge did not further explain her ruling.
Months later, the judge dismissed Burton’s amended complaint with prejudice. The
No. 21-2802 Page 3
judge concluded that Burton did not plausibly connect any adverse employment actions
to her race, age, disability, or protected activity.
On appeal, Burton does not argue that her second amended complaint stated a
claim. Although we liberally construe pro se filings, a pro se appellant cannot simply
ask us to vacate the judgment. FED. R. APP. P. 28(a)(8)(A); Anderson v. Hardman, 241 F.3d
544, 545 (7th Cir. 2001). If the appellant does not articulate why the judgment was
incorrect, any argument for vacating is waived. Shipley v. Chicago Bd. of Election Comm’rs,
947 F.3d 1056, 1062–63 (7th Cir. 2020); Klein v. O’Brien, 884 F.3d 754, 757 (7th Cir. 2018).
The one argument we can discern does not pertain directly to the dismissal:
Burton contends that she should have been provided with a pro bono attorney because
she lacked the funds to hire one. Neither judge explained the denial of Burton’s motions
for an attorney, but we can infer from their summary orders that each wanted to see if
Burton could state a claim before deciding whether it was worthwhile to recruit
counsel. We typically expect more of an explanation than either judge gave here.
See Pickett v. Chicago Transit Auth., 930 F.3d 869, 870–71 (7th Cir. 2019). But under the
circumstances, we cannot say it was unreasonable for the judges to test the strength of
the pleadings before expending the limited resources of the bar and bench to find
counsel. See McCaa v. Hamilton, 959 F.3d 842, 845–46 (7th Cir. 2020); Olson v. Morgan,
750 F.3d 708, 711 (7th Cir. 2014). Indeed, we have acknowledged the difficulty assessing
the need for counsel in the early stages of a case. See Mapes v. Indiana, 932 F.3d 968, 971
(7th Cir. 2019); Pickett, 930 F.3d at 871.
In any event, on appeal Burton must show “a reasonable likelihood that the
presence of counsel would have made a difference in the outcome of the litigation.”
Mejia v. Pfister, 988 F.3d 415, 420 (7th Cir. 2021) (quoting Pruitt v. Mote, 503 F.3d 647, 659
(7th Cir. 2007) (en banc)). But Burton does not explain how an attorney could have set
forth facts that would have given rise to federal claims—particularly when the facts
needed to state a claim were presumably within Burton’s personal knowledge, and the
district judges instructed her on what was lacking.
AFFIRMED