Lawrence L. Pickett, Plaintiff-Appellant,
Chicago Transit Authority, Defendant-Appellee.
July 10, 2019
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 16 C 4337 -
Charles P. Kocoras, Judge.
Easterbrook, Barrett, and Brennan, Circuit Judges.
EASTERBROOK, CIRCUIT JUDGE.
a passenger on a bus operated by the Chicago Transit
Authority screamed at and threatened Lawrence Pickett, the
driver. He took six months off from work while recovering.
After his physician concluded that he could return to work
(though not as a driver), Pickett appeared one morning and
requested a light-duty job. He was given one by the personnel
on duty, but four days later he was told that the CTA was not
ready to permit his return to work.
previously had been told that before returning to work he
needed to complete a form (which was enclosed with the
letter) and report to CTA's Leave Management Services
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 advice, when received,
turned out to be a direction that Pickett go home until he
had done as instructed-fill out the form and report to Leave
Management Services. Pickett did not follow those directions
until 2017. He was then approved for work and retired five
visiting Leave Management Services in 2017 he had filed with
the EEOC a charge of age discrimination. Pickett says that
during 2015 he saw three or four persons younger than himself
doing light-duty tasks. The CTA removed him, the eldest of
the group, and he believes that it left the others at work.
After receiving his right-to-sue letter, Pickett 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. 111. July 18, 2018). (That opinion, and one earlier
order, 2017 U.S. Dist. LEXIS 66873 (N.D. 111. May 2, 2017),
address several theories in addition to the
age-discrimination claim, but all of those other theories
have been abandoned.)
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:
"Picketts [sic] Motion for Attorney representation is
denied at this time." That was it. No explanation. Pro
bono counsel representing Pickett on appeal accurately
observes that we have told district judges that explanations
are essential. Pruitt 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? Pruitt and later cases set out
considerations that bear on the proper exercise of
discretion, but without an explanation how can this court
determine whether the district judge has abused that
discretion? A few words might have sufficed, but the judge
left both Pickett and this court in the dark.
not hard to imagine what those few words might have been. The
judge might have pointed out that Pickett had not provided a
complete financial disclosure, so the record did not show
inability to afford counsel. See 28 U.S.C. §1915(e)(1).
Pickett doubtless has retirement income from Social Security
as well as his former employers. He paid the filing fee in
the district court.
judge might have observed that Pickett did not describe why
he had been unable to hire counsel. A litigant's good
faith but unsuccessful effort to obtain counsel is a
necessary condition to the provision of judicial assistance
to recruit a lawyer. See Pruitt, 503 F.3d at 654.
Pickett told the district 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 commitments? Was it that the lawyers he approached were
unfamiliar with age-discrimination law? Specialization in the
bar contributes to good legal representation, and someone
seeking 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 Pickett's claim
too weak to justify litigation? If lawyers misunderstood
Pickett's contentions because he is inarticulate, then a
judge might have a useful role to play in recruiting counsel,
but if Pickett conveyed his situation well and counsel deemed
the claim feeble, then it would be inappropriate for a court
to intervene. 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.
judge might have observed that Pickett 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 matter under
Pruitt. See 503 F.3d at 654. Perhaps this is what
the judge meant when he said that he would not help Pickett
"at this time." Pickett did not file a second
motion for judicial assistance in obtaining counsel.
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).
Attorneys who represent successful plaintiffs can anticipate
full compensation from the employer, whether or not the
client can afford to pay. Pruitt concerned a
prisoner's suit under 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 Johnson v.
Daley, 339 F.3d 582 (7th Cir. 2003) (en banc). Because
of that cap, we did not consider in Pruitt how
statutes that provide for a prevailing plaintiff to collect a
fully compensatory 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 attention
in cases where it may make a difference.
district judge should have said one or more of these things.
Denying the motion without explanation was an error, 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, Pickett 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 Pickett 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 removed
from the position to which he had been assigned while a
supervisor checked on his eligibility, Pickett failed to
follow these instructions for more than a year.
that the younger workers Pickett saw in light-duty positions
had been allowed to bypass those administrative steps would
support an age-discrimination claim. But Pickett 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 ...