     Case: 12-11243       Document: 00512274732         Page: 1     Date Filed: 06/14/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           June 14, 2013

                                     No. 12-11243                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



DOCTOR VIOLETA PASKAUSKIENE,

                                                  Plaintiff - Appellant
v.

ALCOR PETROLAB, L.L.P.,

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No: 4:11-cv-00817


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Violeta Paskauskiene appeals pro se the district court’s denial of
appointment of counsel, dismissal of her lawsuit, and award of attorney’s fees
and costs to Alcor Petrolab (“Alcor”). For the following reasons, we AFFIRM.
                             FACTUAL BACKGROUND
       Paskauskiene, who is of Lithuanian origin and over 50 years old, worked
as a Quality Control Manager for Alcor, where she was responsible for writing


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                   No. 12-11243

laboratory testing and quality control procedures for Alcor’s laboratories. She
alleges that Alcor’s CEO and her supervisor, Christopher Taylor, discriminated
against her on the basis of her nationality and her age by ignoring her concerns
about quality control issues, not giving her a yearly evaluation, and falsely
accusing her of not complying with company policy.              Paskauskiene was
ultimately terminated from her position which, she alleges, was improperly due
to her calling an employee at home.
        After her termination Paskauskiene filed a charge with the Fort Worth
Community       Relations    Department      (“FWCRD”),      which     investigated
Paskauskiene’s claim and issued a finding of no evidence of discrimination. In
relevant part, the FWCRD determined that: (1) Paskauskiene had been issued
warnings about her failure to follow the chain of command; (2) notwithstanding
these warnings she called an employee at home (for whom she did not have
supervisory authority) and was disrespectful to her; and (3) she was terminated
as a result of her disobedience.      The FWCRD also determined that other
employees not of Paskauskiene’s nationality had been fired for similar reasons.
Paskauskiene appealed to the Equal Employment Opportunity Commission
(“EEOC”), which adopted the findings and conclusions of the FWCRD on May 26,
2011.
                            PROCEEDINGS BELOW
        Paskauskiene filed the instant lawsuit on November 21, 2011, pursuant
to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and Section
1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981. She alleged in her
complaint that she was subject to a hostile work environment and retaliation
while working at Alcor Labs and was discriminated against and wrongfully
terminated on account of her national origin (Lithuanian) and her age.




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       Along with her original complaint Paskauskiene filed a motion to grant
timely filing,1 a motion to proceed in forma pauperis, and a motion for
appointment of counsel. The district court granted her in forma pauperis motion
but denied her motion to grant timely filing and her motion for appointment of
counsel.
       Alcor answered the complaint on January 27, 2012, and the parties timely
executed a joint status report. The court then set a discovery schedule, which
provided that discovery was to close by October 15, 2012. Although the schedule
was later modified in part, the October 15 discovery deadline was never altered.
       On August 28, Paskauskiene filed a motion to file documents under seal,
which included a physician’s note requesting that Paskauskiene “be excused
from all court services.” The district court denied the motion, noting that: (1) “it
is not clear . . . the purpose for which plaintiff would need to file such a
document;” and (2) “[t]o the extent plaintiff anticipates that the document will
excuse her from compliance with the court’s orders, it is ineffective for that
purpose.”
       During a telephone conference on August 27, Paskauskiene reportedly told
counsel for Alcor that she would not make herself available for a deposition due
to her medical condition, at the time undisclosed. Alcor informed Paskauskiene
that it intended to notice her deposition for the week of September 17, 2012, and
later that day served notice on Paskauskiene for a deposition on September 19.
Concerned that Paskauskiene would not appear, Alcor filed a motion on
September 7, 2012 to compel her deposition or, in the alternative, to dismiss the



       1
         Paskauskiene had 90 days to file her complaint in federal court after the EEOC
completed its review. See 42 U.S.C. § 2000e–5(f)(1). Her November 21 filing was therefore
untimely. However, her untimeliness does not create a jurisdictional bar to suit. Harris v.
Boyd Tunica, Inc., 628 F.3d 237, 239 (5th Cir. 2010). Because Alcor did not move for dismissal
on this basis in the district court or brief this issue on appeal, we decline to address the
question of whether Paskauskiene’s suit should have been dismissed as time barred.

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case. The district court denied Alcor’s motion, but noted that, “should plaintiff
fail to appear in response to a proper notice of deposition, defendant may file a
motion to dismiss as a sanction for such failure to appear.” The court also
alerted Paskauskiene that, should she fail appear, “she is at risk that all claims
and causes of action asserted in this action will promptly be dismissed.”
      On September 18 Paskauskiene filed a motion to quash the notice of her
deposition. The district court denied the motion and advised Alcor to provide
notice to Paskauskiene that the deposition would proceed the following day.
Purportedly acting on the advice of her doctor, Paskauskiene did not appear for
her deposition. On October 1, Alcor filed a motion to dismiss the lawsuit as a
sanction for Paskauskiene’s failure to appear.
      The court issued an order on October 2 that it had “tentatively . . .
concluded that [the] motion to dismiss should be granted” and that
Paskauskiene should be ordered to reimburse Alcor for the costs of her non-
appearance.     However, before issuing a final order, the court offered
Paskauskiene the opportunity to respond and explain why she did not appear for
her deposition. The court noted that “[t]he indication is that plaintiff has simply
decided that she is not going to cooperate in the pursuit of this litigation,” and
warned Paskauskiene that “having filed this action, she must cooperate with
defendant in the prosecution of her action. She is at risk that her action will be
dismissed as a sanction if she fails to cooperate.”
      After Paskauskiene filed her response, the district court denied the motion
to dismiss but required Paskauskiene to appear at the offices of Alcor’s counsel
for deposition on October 30. The court noted in the order that “[p]laintiff has
been repeatedly warned by the court . . . that failure to cooperate in the
prosecution of her action, including failure to appear for her deposition, could
result in dismissal of this action,” and that, “should she fail to appear for her
deposition, this action is subject to dismissal without further notice.”

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      On November 1, 2012 Alcor notified the court that, although Paskauskiene
had appeared for her deposition as ordered, she refused to answer questions,
demanded that she be allowed to introduce documents, and ultimately left
without being excused. As a result of Paskauskiene’s failure to comply with the
court’s orders, Alcor requested that the lawsuit be dismissed with prejudice, and
that it be granted attorney’s fees and costs incurred as a result of Paskauskiene’s
non-compliance.
      On November 28, 2012, the district court granted Alcor’s motion and
dismissed Paskauskiene’s complaint. The court noted that the record “shows a
consistent pattern by plaintiff of attempting to avoid her obligation to cooperate
in the discovery process,” and that Paskauskiene did not “dispute defendant’s
description of her conduct [at her October 30th deposition] but rather attempted
to justify her actions by reference to various provisions of Rule 30 of the Federal
Rules of Civil Procedure.” The court also awarded Alcor attorney’s fees and costs
in the amount of $6,247.30. Paskauskiene timely appealed, challenging the
district court’s refusal to appoint counsel, the dismissal of her lawsuit, and the
award of attorney’s fees and costs to Alcor.
                          STANDARD OF REVIEW
      This court reviews the district court’s denial of a motion to appoint counsel
for abuse of discretion. Gonzalez v. Carlin, 907 F.2d 573, 579 (5th Cir. 1990);
Jackson v. Dallas Police Dep’t, 811 F.2d 260, 261 (5th Cir. 1986). This court also
reviews the imposition of sanctions, including dismissal of an action, under
Rules 37(b) and 41(b) of the Federal Rule of Civil Procedure for abuse of
discretion. Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 642
(1976); Salinas v. Sun Oil Co., 819 F.2d 105, 106 (5th Cir. 1987). An abuse of
discretion occurs where a ruling is based on an erroneous view of the law or on
a clearly erroneous assessment of the evidence. Tollett v. City of Kemah, 285
F.3d 357, 363 (5th Cir. 2002).

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                                  DISCUSSION
A.      Denial of Motion for Appointed Counsel
        “[T]he appointment of counsel in a civil case is a privilege and not a
constitutional right.” Lopez v. Reyes, 692 F.2d 15, 17 (5th Cir. 1982). Title VII
provides for the appointment of counsel “in such circumstances as the court may
deem just.” 42 U.S.C. § 2000e-5(f)(1). In determining whether to appoint
counsel in a Title VII case, a court should consider “(1) the merits of the
plaintiff’s claims of discrimination; (2) the efforts taken by the plaintiff to obtain
counsel; and (3) the plaintiff’s financial ability to retain counsel.” Gonzalez, 907
F.2d at 580. No one factor is conclusive. Id. The plaintiff bears the burden of
demonstrating that the appointment of counsel is justified. Caston v. Sears,
Roebuck & Co., 556 F.2d 1305, 1310 (5th Cir. 1977).
        It is undisputed that Paskauskiene is of limited financial means and that
she made significant efforts to retain counsel by contacting several attorneys,
albeit unsuccessfully.    However, by adopting the findings of the FWCRD, the
EEOC found no evidence of discrimination underlying Paskauskiene’s claims.
Determinations by the EEOC are “highly probative” of the merits of a plaintiff’s
case when considering a motion to appoint counsel. See Gonzalez, 907 F.2d at
580.
        This court is also permitted to consider Paskauskiene’s ability to represent
herself alongside the factors listed above, as they are “simply ingredients in the
total mix of relevant information which should guide the discretion of the district
court.” Caston, 556 F.2d at 1310; see Ulmer v. Chancellor, 691 F.2d 209, 213 (5th
Cir. 1982) (holding that a court may consider a plaintiff’s ability to represent
herself, among other factors, when evaluating whether to appoint counsel under
42 U.S.C. § 1983). Paskauskiene is highly educated, familiar with Title VII law
and procedure, and was pursuing a straightforward case. For these reasons, as



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well as those stated above, we conclude that the district court did not abuse its
discretion in denying Paskauskiene’s motion for the appointment of counsel.
B.    Dismissal of Paskauskiene’s Complaint
      The Federal Rules of Civil Procedure permit the imposition of sanctions,
including dismissal of an action, for failure to comply with a court order or
failure to appear at a properly-noticed deposition. See FED. R. CIV. P. 37(b)(2),
(d); see also FED. R. CIV. P. 41(b).
      Dismissal of an action with prejudice is permitted only upon a showing of
a “‘clear record of delay or contumacious conduct by the plaintiff . . . and when
lesser sanctions would not serve the best interests of justice.’” Callip v. Harris
Cnty. Child Welfare Dep’t, 757 F.2d 1513, 1519 (5th Cir. 1985) (quoting Rogers
v. Kroger Co., 669 F.2d 1317, 1320 (5th Cir. 1982)). Because dismissal is an
“extreme sanction,” dismissals with prejudice usually involve the presence of one
or more of the following aggravating factors: “(1) delay attributable directly to
the plaintiff, rather than [the] attorney; (2) actual prejudice to the defendant;
and (3) delay caused by intentional conduct.” Id.
      The record reflects that Paskauskiene engaged in contumacious conduct
by repeatedly failing to comply in good faith with court orders, acting in an
evasive and purposefully disruptive manner during her court-ordered deposition,
and ultimately terminating her deposition after repeatedly attempting to
introduce a document rather than respond to counsel’s questions. This type of
behavior persisted throughout the litigation despite the court’s repeated
warnings that failure to cooperate could result in dismissal. Furthermore, given
Paskauskiene’s financial circumstances and her persistent refusal to comply
with Alcor’s requests despite strong warnings, it is clear that lesser sanctions
(including additional warnings or monetary sanctions) would not serve the
interests of justice.



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      Considering the potential “aggravating factors,” Callip, 757 F.2d at 1519,
it is notable that (1) given her pro se status, Paskauskiene’s conduct was
attributable to no one but herself, and (2) the repetitive nature of her actions in
light of repeated court warnings strongly indicates that she did not act
unintentionally. More fundamentally, however, without the ability to take
Paskauskiene’s deposition, Alcor faced substantial prejudice in defending itself
in this litigation. As the district court explained, having filed this action,
Paskauskiene had a duty to cooperate with Alcor and the court in its
prosecution. Her failure to do so is determinative of this issue.
      The district court did not abuse its discretion in holding that Paskauskiene
“engaged in conduct of the kind warranting dismissal by repeatedly attempting
to circumvent, delay, or disrupt the taking of her deposition.” The dismissal of
Paskauskiene’s complaint was not in error.
C.    Award of Costs and Fees
      Rule 37(b)(2)(C) provides that a court must order payment of reasonable
expenses, including attorney’s fees, for a party’s failure to comply with a court
order unless that failure was substantially justified. FED. R. CIV. P. 37(b)(2)(C).
For the reasons explained above, the district court did not err in holding that
Paskauskiene’s failure to comply with its orders was not substantially justified.
She is ordered to reimburse Alcor in the amount of $6,247.30 for the reasonable
expenses incurred as a result of her non-compliance— including $1,609.30 for a
court reporter, $813 for a videographer, and $3,825 in attorneys fees—as set
forth in Alcor’s November 7, 2012 Supplement to Defendant’s Motion for Relief
and Affidavit of Allyn Jaqua Lowell.
                                CONCLUSION
      The judgment of the district court is AFFIRMED.




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