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Crabbe v. Nakayama

United States District Court, D. Hawaii

November 14, 2018

GAIL LYNN CRABBE, Plaintiff,
v.
DARLENE NAKAYAMA, PALOLO CHINESE HOME, et al., Defendants.

         ORDER (1) GRANTING APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES OR COSTS; (2) DISMISSING COMPLAINT WITH PARTIAL LEAVE TO AMEND; (3) DENYING AS MOOT MOTION FOR APPOINTMENT OF COUNSEL; AND (4) DENYING AMENDED MOTION FOR APPOINTMENT OF COUNSEL. [1]

          Derrick K. Watson, United States District Judge

         On October 30, 2018, Plaintiff Gail Lynn Crabbe, proceeding pro se, filed a Complaint against Palolo Chinese Home (Palolo) as well as numerous individuals who appear to be past or present employees and/or members of the board of directors of Palolo (“the individual defendants, ” and, collectively with Palolo, “Defendants”). Dkt. No. 1. Crabbe also filed an application to proceed in forma pauperis (“IFP Application”) and an amended motion for appointment of counsel. Dkt. Nos. 2, 8.[2]

         I. Crabbe'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).

         In the IFP Application, Crabbe states that she has earned $14, 824 in the last 12 months-an amount that appears to consist mostly of disability insurance payments, which ended in February 2018. She states that she filed for social security in July 2018, and, since August 2018, she has received $1, 472 per month therefrom. She expects to receive $1, 472 in social security every month going forward. Further, Crabbe states that she has minus $37.11 in a checking or savings account and owns two automobiles bought for $1, 500 and $500 respectively. Crabbe also states that she has “cashed out” a pension and an annuity totaling more than $45, 000, but, elsewhere in her filings, she says that “there is no money left from catching up after my husband was laid off for several months.” See Decl. in Support of IFP Application at 2, Dkt. No. 9. Further, Crabbe states that she has regular monthly expenses of $940 for health insurance and an undisclosed amount that she and her husband pay in food for her son. Crabbe also asserts that her husband pays their $2, 000 rent and utility bill, gasoline, co-pays for medical appointments, and medications. Further, Crabbe states that she owes $2, 400 to a doctor.

         In light of Crabbe's assertions in her IFP Application and supporting declaration, the Court finds that she has shown an inability to pay the $400 filing fee while still affording the necessities of life. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015). In addition, on the present record, Crabbe has insufficient assets to provide security. As a result, the Court GRANTS the IFP Application, Dkt. No. 2.

         II. Screening of Crabbe's Complaint

         The Court subjects each civil action commenced pursuant to 28 U.S.C. § 1915(a) to mandatory screening and can order the dismissal of any claims it finds “frivolous, malicious, failing to state a claim upon which relief may be granted, or seeking monetary relief from a defendant immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). In doing so, the Court liberally construes a 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).

         A. The Complaint

         In her Complaint, Crabbe brings at least one claim of employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII). Crabbe also appears to bring a claim of disability discrimination under the Americans with Disabilities Act (ADA) and, arguably, a claim of age discrimination and a claim concerning Family and Medical Leave Act (FMLA) leave.

         Before getting to Crabbe's factual allegations, the Court addresses a preliminary matter. In the Complaint, Crabbe names approximately 20 individuals as defendants. All of these individuals appear to be connected to Palolo, mostly as members of the entity's board of directors, but also possibly as employees. Putting aside for now that Crabbe does not allege that any of the individual defendants committed any of the acts alleged in the Complaint, even if she did, she cannot maintain a cause of action against an individual under Title VII, the ADA, or the Age Discrimination in Employment Act (ADEA).[3] See Miller v. Maxwell's Int'l, Inc., 991 F.2d 583, 587-588 (9th Cir. 1993) (concluding that there is no individual liability under Title VII and the ADEA); Link v. Rhodes, 2006 WL 1348424, at *5 (N.D. Cal. May 17, 2006) (dismissing with prejudice ADA claims brought against individual defendants because there is no individual liability under the ADA); McClelland v. Nev. Dep't of Prisons, 1994 WL 497545, at *1-3 (D. Nev. Aug. 29, 1994) (explaining that, because the ADA adopts the remedy provisions of Title VII and the Ninth Circuit has concluded that individuals are not liable under Title VII, individuals are not liable under the ADA).

         As a result, Crabbe's claims against the individual defendants are DISMISSED WITH PREJUDICE because amendment cannot remedy the above-stated deficiency with those claims. To the extent Crabbe files an amended complaint, she may not bring any claims against an individual under Title VII, the ADA, or the ADEA.[4]

         The Court now turns to the claims against Palolo. Crabbe makes the following factual allegations. Crabbe worked alone for 5 years, doing social services for 61 patients.[5] During this five-year period, Crabbe had a private office to counsel families. Crabbe says that being in a private office “worked fine” for her because she has to wear hearing aids. At some point in early 2017, Crabbe returned to work after taking FMLA leave. In late 2017, it appears that “a new building plus 50 patients were added” to her duties. At this time, it also appears that a second “social service[s] coordinator” was hired, and they both were given multiple new, but unidentified, duties. Supervisors gave assistance to a “younger Filipino, ” but did not do so for Crabbe.[6] In addition, Crabbe's work increased “over 45%, ” and she was placed in an office with 3 other people. Crabbe could not hear her clients/vendors on the telephone in this office. At some point, Crabbe was ridiculed in a meeting because she could not hear and mixed-up patients. An administrator suggested that she wear ear muffs. Crabbe was also told to work an extra day each week with no increase in her pay.

         On an unspecified date, Crabbe was forced to go to an unscheduled meeting at the same time that she should have been at her important weekly team meeting. While she was running between buildings (presumably, to get from one meeting to another), Crabbe fell on the concrete. She suffered “[m]ild” physical injury, but “extensive” psychological injury making her unable to work. A workers' compensation claim for a “fall” she suffered has still not been processed.[7]Unidentified people continued to harass Crabbe on a monthly basis by letter, and she was fired (on an unspecified date) before returning to work. Crabbe appears to allege she was fired for faxing a doctor's statement to a disconnected fax machine.

         B. Title VII

         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 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, Crabbe appears to rely upon race and, arguably, hostile work environment. The Court addresses both.

         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).

         Here, Crabbe alleges that she is Caucasian, which is a protected class. Crabbe also alleges that she was terminated, which is an adverse employment action. Crabbe may also allege other adverse employment actions. For instance, she alleges her workload was increased over 45%, she was told to work an extra day with no increase in pay, and her workers' compensation claim has not been processed even though her injury occurred over a year ago. Arguably, these are adverse employment actions. See Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008) (stating that “assigning more, or more burdensome, work responsibilities, is an adverse employment action”); cf. Brooks v. City of San Mateo, 229 F.3d 917, 929 (9th Cir. 2000) (concluding that an employer using “all of its allotted 90 days to process the worker's compensation claim” could not constitute an adverse action where the plaintiff failed to show that the employer treated other employees differently).

         There is no mention in the Complaint, though, of how Crabbe was performing in her job, whether adequately or otherwise. With respect to the final element of a prima facie race discrimination claim, Crabbe alleges that a “younger Filipino” was given assistance by supervisors while Crabbe was not. For present purposes, the Court assumes that Crabbe has alleged that her colleague was not a member of her protected class.[8] Crabbe's allegation, though, is simply too vague to assume either that she was treated differently or that she was similarly situated to her colleague. Other than appearing to allege that her colleague was also a social services coordinator, Crabbe provides no explanation for how they were similarly situated. As for different treatment, Crabbe provides no explanation of what “assistance” her colleague was provided. Notably in that regard, Crabbe appears to allege that the second social services coordinator was hired in 2017. If that is the case, there could be a very good reason why the newly-hired coordinator was given assistance while Crabbe, who had worked in social services for at least five years, was not.

         As a result, Crabbe's claim of race discrimination is DISMIISSED WITHOUT PREJUDICE. Crabbe may file an amended complaint that addresses the deficiencies in her race discrimination claim, described above. Should Crabbe do so, she must allege, for instance, whether she was adequately performing her job at the time of her termination. She must further allege facts supporting her conclusory assertion that she and her “younger Filipino” colleague were similarly situated. In addition, so this claim is clearer, Crabbe should attempt to identify the assistance her colleague was given.

         Hostile Work Environment

         A hostile work environment claim under Title VII can be premised upon race. Vasquez v. Cty. of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2003). Such a claim requires a plaintiff to show that (1) she was subjected to verbal or physical conduct of a racial nature, (2) the conduct was unwelcome, and (3) “the conduct was sufficiently severe or pervasive to alter the conditions of the plaintiff's employment and create an abusive work environment.” Id.

         Here, it is far from clear whether Crabbe intends to allege a hostile work environment claim. Out of an abundance of caution, however, the Court notes the following deficiencies with any such claim. Notably, although Crabbe asserts that she was “harassed, ” that is all she says. For instance, Crabbe alleges she was “harassed by CEO's secretary” and she received “harassing letters” every month from unidentified sender(s). Merely throwing some derivation of the word “harass” into a sentence, though, does not advance any claim, as conclusory statements do not suffice. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). More important, to the extent Crabbe intends to allege a hostile work environment claim, she must place the treatment and letters she allegedly received in some factual context. Such as what the CEO's secretary allegedly said to her and how often, and what the alleged letters said and whom they were from. Otherwise, it will be impossible to assess whether the alleged conduct was of a racial nature and whether it was sufficiently severe or pervasive to alter the conditions of her employment. As a result, to the extent Crabbe alleges a hostile work environment claim under Title VII, it is DISMISSED WITHOUT PREJUDICE. To the extent Crabbe files an amended complaint, she must ...


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