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Colon v. Century 21 Properties Hawaii

United States District Court, D. Hawaii

November 6, 2018

JESSICA ELAINE COLON, Plaintiff,
v.
CENTURY 21 PROPERTIES HAWAII, ABE LEE, and SANDRA SAKUMA, Defendants.

          ORDER (1) GRANTING APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES OR COSTS; AND (2) DISMISSING COMPLAINT WITHOUT PREJUDICE IN PART WITH LEAVE TO AMEND. [1]

          Derricek K. Watson, United States District Judge.

         On October 19, 2018, Plaintiff Jessica Elaine Colon, proceeding pro se, filed a Complaint against Century 21 Properties Hawaii (Century 21), Abe Lee, and Sandra Sakuma (Century 21, Lee, and Sakuma, together, “Defendants”). Dkt. No. 1. Colon also filed an application to proceed in forma pauperis (“IFP Application”).[2]Dkt. No. 2.

         I. Colon's IFP Application

         Federal courts can authorize the commencement of any suit without prepayment of fees or security by a person who submits an affidavit that demonstrates an inability to pay. See 28 U.S.C. § 1915(a)(1). While Section 1915(a) does not require a litigant to demonstrate absolute destitution, Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948), the applicant must nonetheless show that she is “unable to pay such fees or give security therefor, ” 28 U.S.C. § 1915(a).

         Here, Colon has made the required showing under Section 1915(a). In the IFP Application, Colon states that she is an independent contractor for Postmates, Inc. and has total take-home pay of $800 per month. Further, Colon states that she receives no other income, has $642 in a checking or savings account, and owns no automobile, real property, or financial instruments. Further, Colon states that she has regular monthly expenses totaling $340, $42, 500 in student loan debt, and $3, 500 in credit card debt and “misc. bills.” In light of these figures, Colon's income falls below the poverty threshold identified by the Department of Health and Human Services' (“HHS”) 2018 Poverty Guidelines. See HHS Poverty Guidelines, available at: https://www.federalregister.gov/documents/2018/01/18/2018-00814/annual-update -of-the-hhs-poverty-guidelines. In addition, Colon has insufficient assets to provide security. As a result, the Court GRANTS the IFP Application, Dkt. No. 2.

         II. Screening of Colon's Complaint

         The Court liberally construes the pro se Complaint. Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987). However, the Court cannot act as counsel for a pro se litigant or supply the essential elements of a claim. Pliler v. Ford, 542 U.S. 225, 231 (2004); Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

         In her Complaint, Colon brings claims of employment discrimination in violation of Title VII of the Civil Rights Act of 1964. Colon makes the following factual allegations. After being called a “hauli, ” apparently at Century 21, Colon went to Staffing Solutions of Hawaii, the company that had placed her at Century 21, to let them know what had been said to her. Staffing Solutions contacted Sakuma, and Century 21apologized and admitted in an email to discrimination. Afterwards, Century 21 “escalated the situation” by creating a hostile work environment, which led to Colon being threatened with kidnapping, beatings, and extortion. Colon alleges these events occurred between February 28 and April 30, 2018. Colon also appears to allege that she lost her job on April 30, 2018. Colon further alleges that she filed a charge with the Equal Employment Opportunity Commission (EEOC) on July 4, 2018, and she was issued a Notice of Right to Sue letter on August 3, 2018. Colon did not submit the Notice of Right to Sue letter with her Complaint, though, because it was “not with [her].” Title VII prohibits refusing to hire or discharging any individual on the bases of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1).

         Title VII further prohibits retaliation against an employee who has engaged in an activity protected by Title VII, such as opposing any practice made unlawful under the statute. Id. § 2000e-3(a). Title VII has also been construed as prohibiting harassment that is so severe or pervasive that it creates a hostile work environment. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66-67 (1986). Here, Colon appears to rely upon race, gender, religion, retaliation, and hostile work environment. The Court addresses each.

         Race Discrimination

         To set forth a prima facie case of race discrimination under Title VII, an employee must allege that (1) she is a member of a protected class, (2) she performed her job adequately, (3) she suffered an adverse employment action, and (4) she was treated differently than a similarly situated employee who was not a member of her protected class. Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006).

         Colon asserts that she was discriminated against because she is not a Hawaiian-born U.S. citizen. She appears to allege that she is of “Spanish” ancestry. For present purposes, the Court assumes that Colon has alleged she is a member of a protected class.[3] Colon also alleges that she lost her job. As such, Colon has alleged an adverse employment action. In addition, although Colon does not specifically allege it, the Court is willing to assume that there were other employees outside of her protected class and those employees were not terminated. The Court cannot assume, though, that Colon adequately performed her job because there are simply no factual allegations in that regard either directly or impliedly. One further problem with this claim is that Colon fails to identify who called her a “hauli.”[4]

         As a result, Colon's claim of race discrimination is DISMIISSED WITHOUT PREJUDICE. Colon may file an Amended Complaint, amending her race discrimination claim. Should Colon do so, she must allege whether she was adequately performing her job at the time of her termination. She must further allege who called her a “hauli” by identifying that individual or at least by identifying how that individual is connected to Century 21. In addition, so this claim is clearer, Colon should allege whether Century 21 employed individuals outside of her protected class and, if so, whether they were treated more favorably than her.

         Gender and ...


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