Regina Bryant v. Denis McDonoughRegina Bryant v. Denis McDonough
Decided and Filed: June 28, 2023
Before: COLE, McKEAGUE, and NALBANDIAN, Circuit Judges.
COUNSEL
ON BRIEF: Cara L. Staley Rafferty, Renée A. Bacchus, UNITED STATES ATTORNEY‘S OFFICE, Cleveland, Ohio, for Appellee. Regina Bryant, Cleveland, Ohio, pro se.
ORDER
Regina Bryant, a pro se Ohio plaintiff, appeals the district court‘s judgment in favor of the Secretary of the Department of Veterans Affairs (VA) on her federal employment-discrimination and retaliation complaint. Bryant moves the court for appointment of counsel on appeal. This case has been referred to a panel of the court that, upon examination, unanimously agrees that oral argument is not needed. See
Bryant, who is African American and has dyslexia, was employed at the VA hospital in Cleveland, Ohio, as a sterile processing technician. In June 2021, Bryant, proceeding pro se, filed a 97-page amended complaint against the VA, which the district court construed as raising the following claims: (1) disability discrimination, in violation of the
Bryant moved the district court to appoint counsel to represent her, arguing that she was disadvantaged because of her learning disability and the fact that she was opposing government lawyers. The district court denied the motion because the issues were not complex and Bryant had demonstrated sufficient ability to represent hеrself.
On motion of the Secretary, the district court dismissed claims one through five as well as claim seven under
After discovery closed, the Secretary moved for summary judgment on Bryant‘s remaining claim that she was not hired for the painter position because of her sex and disability. According to evidence presented by the Secretary, the male candidate who was ultimately selected for the position was both disabled himself and better qualified than Bryant—his interview score was higher, he displayed greater knowledge of the technical requirements of the position, and he had more commеrcial painting experience. The district court found that Bryant failed to present evidence that the VA‘s reason for not selecting her for the painter position was a pretext for discrimination. Accordingly, it granted summary judgment to the Secretary and dismissed her amended complaint.
Bryant‘s apрellate brief raises two issues only—the district court‘s denial of her motion for appointment of counsel and its dismissal of “the first part of [her] case.” (Appellant‘s Br. at 3.) As to the second issue, Bryant focuses on her claim that the VA subjected her to a hostile work environment by continually assigning her and Arthur to work on the same shift. By limiting her brief to these two issues, Bryant has forfeited appellate review of the district court‘s dismissal of her other claims under
We first address Bryant‘s argument that the district court erred in dismissing her hostile work environment claim. As mentioned above, the district court concluded that the mere assignment of Arthur to Bryant‘s shift was insufficient as a matter of law to establish a pervasively severe and hostile work environment and that Bryant failed to administratively exhaust other alleged incidents of harassment by Arthur.
We review de novo a district court‘s judgment granting a
Because Bryant was a federal employee at the relevant times in this case, the
knew or should have known about the hаrassment and failed to take corrective measures.” Plautz v. Potter, 156 F. App‘x 812, 818 (6th Cir. 2005) (per curiam) (borrowing the standard for a hostile work environment claim under the Rehabilitation Act from the ADA context)
Here, even if the district court erred in concluding that Bryant‘s hostile-work-environment claim was limited to the VA‘s assignment of Arthur to work on the same shift as Bryant, Bryant‘s allegations, accepted as true, do not plausibly show that hеr work environment was pervasively discriminatory. In addition to having to work on the same shift as Arthur, the only other allegedly hostile incidents that Bryant‘s complaint identified were that Arthur spoke rudely to her a couple of times and that on a few other occasions Arthur went out her way to sit near Bryant in the lab. Bryant оtherwise speculated that Arthur had tampered with her computer and VA records. These isolated incidents were insufficient as a matter of law to еstablish a severe or pervasively hostile work environment. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Phillips v. UAW Int‘l, 854 F.3d 323, 328 (6th Cir. 2017).
Bryant also argues that the district court erred in denying her motion for appointment оf counsel. We review that decision for an abuse of discretion. Lavado v. Keohane, 992 F.2d 601, 605 (6th Cir. 1993). An abuse of discretion occurs where the reviewing court has “a definite and firm cоnviction that the court below committed a clear error of judgment.” In re Wingerter, 594 F.3d 931, 936 (6th Cir. 2010) (quoting In re M.J. Waterman & Assocs., 227 F.3d 604, 607–08 (6th Cir. 2000)). “Appointment of counsel in a civil case is not a constitutional right” but “a privilеge that is justified only by exceptional circumstances.” Lavado, 992 F.2d at 605–06. Whether exceptional circumstances exist depends on the type of case and the plaintiff‘s ability to represent herself. See id. at 606. In turn, this involves an assessment of the complexity of the factual and legal issues involved in the case. Sеe id.
Despite her learning disability, Bryant was able to comply with all of the relevant deadlines, file motions and memoranda that outlined her arguments with relаtive clarity, and marshal evidence in support of her claims. Under those circumstances, we agree with the district court that Bryant displayed sufficient аbility to represent herself. We conclude therefore that the district court did not abuse its discretion in declining to appoint counsel for Bryant. We dеny Bryant‘s motion for appointment of counsel on appeal for the same reasons.
For these reasons, we AFFIRM the district court‘s judgment and DENY Bryant‘s motion for appointment of counsel.
ENTERED BY ORDER OF THE COURT
Deborah S. Hunt, Clerk