Unpublished Disposition, 900 F.2d 262 (9th Cir. 1990)

MEMORANDUM^** 

Patricia Gordon appeals the decisions denying her request for counsel and granting summary judgment in favor of the American Red Cross (Red Cross). Gordon alleges the Red Cross failed to promote her and subjected her to harassing work conditions in violation of Title VII of the Civil Rights Act of 1963, 42 U.S.C. § 2000e-5. She also sets forth several pendent state law claims.

The Red Cross hired Gordon, an African-American, as a clerk-typist in March 1975. Gordon subsequently was given three promotions and by July 1980 was working as an Administrative Assistant II--the highest clerical position available at Red Cross.

In 1986 the Red Cross was seeking to fill the position of "Development Coordinator." Gordon asserts in her Opening Brief that she was not informed that the position was available but states in her deposition that she knew of the vacancy. She did not apply for the position because she was told she did not have the requisite qualifications. Red Cross promoted Tina Johann, a Caucasian, for the position. Gordon claims Red Cross failed to promote her on the basis of her race.

Gordon also takes the position that her supervisors gave her a heavy workload, short deadlines, and then scolded and harassed her for failing to meet those deadlines. She alleges this was a constructive discharge in violation of Title VII.

To bolster her position that Red Cross was motivated by illegal considerations, Gordon points to other, time-barred incidents which she thinks reflect Red Cross' discriminatory intent. In 1982 and 1984 the Red Cross had openings for a Campaign Associate and a Development Coordinator. Gordon was not informed of these openings and she did not apply. These positions were also given to Caucasians.

Gordon resigned from the Red Cross in September 1986. She filed a discrimination charge in June 1987 with the Equal Employment Opportunity Agency (EEOC), which found there was no reasonable cause to support Gordon's claim. Gordon then filed a complaint with the district court and petitioned three times for the appointment of counsel. The district court denied these petitions, ultimately finding Gordon's claims were without merit. The Red Cross then filed a motion for summary judgment, which Gordon failed to oppose. The district court granted Red Cross' motion as to all the claims deeming appellant's lack of opposition as consent to the motion pursuant to California Central District Local Rule 7.9.

ANALYSIS

Under Title VII, a court may appoint counsel "in such circumstances as the court may deem just." 42 U.S.C. § 2000e-5(f) (1). In determining whether to appoint counsel, the district court must consider (1) the plaintiff's financial resources, (2) the efforts made by the plaintiff to secure counsel, and (3) whether the plaintiff's discrimination claims have merit. Bradshaw v. Zoological Soc'y, 662 F.2d 1301, 1318 (9th Cir. 1981).

Gordon does not have sufficient resources to hire counsel and she has repeatedly made efforts to secure counsel, Red Cross concedes this. Gordon, however, has not shown her claims have merit and, therefore, fails to meet the third prong of the test.

1. The 1986 promotion.

The Red Cross denied Gordon a promotion to the position of Development Coordinator in February 1986. Gordon contacted the EEOC and filed an "intake questionnaire" in September 1986. She, however, did not file her claim until June 1987. A complainant must file a discrimination charge with the Equal Employment Opportunity Commission (EEOC) within 180 days of the occurrence of the alleged unlawful employment practice. 42 U.S.C. § 2000e-5(e); EEOC v. Commercial office Products Co., 486 U.S. 107, 110 (1988). This claim, therefore, is time-barred.¹ 

2. Constructive discharge.

Although Gordon failed to allege constructive discharge, she states that if she had an attorney, she would have alleged it. A constructive discharge occurs when, looking at the totality of the circumstances "a reasonable person in the employee's position would have felt she was forced the quit because of intolerable and discriminatory working conditions." Watson v. Nationwide Insurance Co., 823 F.2d 360, 361 (9th Cir. 1987). Gordon's testimony at her deposition undermines this claim. She states that, at the time she was given a heavy workload, all the Red Cross employees were unusually busy. Gordon states that Red Cross supplied her with several temporary assistants to ease her work. In fact when Gordon was asked if she felt her increase in work was racially motivated, she replied, "No." Moreover, the EEOC determined there was no reasonable cause to believe Gordon had been subjected to discrimination based upon her race. Even if alleged, the record does not indicate the claim is meritorious.

3. Pendent state law claims.

Gordon argues on this appeal that if she had the assistance of an attorney she might have alleged diversity jurisdiction compelling the federal court to hear her claims alleging breach of contract, intentional infliction of emotional distress, defamation, and wrongful termination. This argument fails because Title VII does not permit the appointment of counsel for assistance in litigating state law claims. Gordon does not allege any facts which indicate that Red Cross discriminated against her on the basis of her race. Her pendent state law claims, therefore, must also fail as Red Cross' discriminatory actions are the basis of the state law claims.

AFFIRMED.