United States District Court, D. Hawaii
ORDER (1) GRANTING APPLICATION TO PROCEED WITHOUT
PREPAYMENT OF FEES OR COSTS; AND (2) DISMISSING COMPLAINT
WITHOUT PREJUDICE IN PARTWITH LEAVE TO AMEND.
Derrick K. Watson United States District Judge
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”).Dkt. No. 2.
Colon's IFP Application
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).
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:
-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.
Screening of Colon's Complaint
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.
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
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.
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
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. 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
result, Colon's claim of race discrimination is DISMISSED
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.