Paras v. Austin

Filing 12

ORDER DIRECTING SERVICE OF THE FIRST AMENDED COMPLAINT re 9 - Signed by JUDGE MICAH W.J. SMITH on 9/24/2024. CONCLUSIONFor the foregoing reasons, the FAC, ECF No. 9, has survived screening , and is now the operative complaint in this action.SERVICE ORDERAccordingly, the Court DIRECTS service of the First Amended Complaint, ECF No. 9, as follows:(1) The Clerk is directed to send a copy of this Ord er to the United States Marshal at P.O. Box 50184, Honolulu, HI 96850.(2) The Clerk is directed to send Paras: four copies of the First Amended Complaint, ECF No. 9; three completed summonses; and three USM-285 forms. The Clerk is further directe d to send Paras an instruction sheet.(3) Paras shall complete the forms as directed and submit all of the documents to the U.S. Marshal in Honolulu, Hawai'i. The mailing address for the United States Attorney's Office for the District of Hawai'i is 300 Ala Moana Boulevard, #6-100, Honolulu, HI 96850. The mailing address for the United States Attorney General is U.S. Department of Justice, 950 Pennsylvania Ave., NW, Washington, DC 20530. The mailing address for Lloyd J. Austin III, Secretary of Defense, is 1000 Defense Pentagon, Washington, DC 20301.(4) Upon receipt of these documents, the U.S. Marshal shall deliver a copy of the First Amended Complaint and completed summons to the United States Attorney for the Distr ict of Hawai'i, the Attorney General of the United States, and United States Secretary of Defense Lloyd J. Austin, III as directed by Paras pursuant to Federal Rule of Civil Procedure 4 without payment of costs.(5) Alternatively, if Paras do es not wish to use the services of the U.S. Marshal in effecting service of the First Amended Complaint and summons as outlined above, she may serve Defendant on her own in accordance with the procedures set forth in Rule 4 of the Federal Rules of Ci vil Procedure. Paras is cautioned that if she fails to comply with this Order and her non-compliance prevents timely and proper service as set forth in Federal Rule of Civil Procedure 4(m), this action is subject to dismissal for failure to serve.(6) Once served, Defendant shall file an answer or responsive pleading to the First Amended Complaint within the time set forth in Rule 12 of the Federal Rules of Civil Procedure.(7) After the First Amended Complaint is served and Defendant has filed an answer or responsive pleading, all further documents submitted to the Court will be deemed served when they are electronically filed in this Court. The U.S. Marshal is not responsible for serving these documents on Paras' behalf.(8) Paras shall inform the Court of any change of address by filing a "NOTICE OF CHANGE OF ADDRESS." The notice shall contain only information about the change of address and its effective date and shall not include any other requests for reli ef. Failure to file a notice may result in the dismissal of the action for failure to prosecute under Federal Rule of Civil Procedure 41(b). COURT'S CERTIFICATE OF SERVICE - Emerida Para shall be serv ed by First Class Mail to the address of record listed on the Notice of Electronic Filing (NEF) on 9/24/2024. Additionally, a copy of this order shall be served by First Class Mail to the United States Marshall at P.O. Box 50184, Honolulu, HI 96850 on 9/24/2024. (jni)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
EMERIDA PARAS,

Civil No. 24-00268 MWJS-WRP
ORDER DIRECTING SERVICE OF
THE FIRST AMENDED
COMPLAINT

Plaintiff,
vs.
LLOYD J. AUSTIN, III,
Defendant.

INTRODUCTION
Before the Court is pro se Plaintiff Emerida Paras’ First Amended
Complaint (FAC), in which she sues her former employer under Title VII. ECF
No. 9. Paras is proceeding in forma pauperis—that is, without prepayment of fees
and costs, see ECF No. 6—and so the Court is required to screen her complaint,
see 28 U.S.C. § 1915(e). Because Paras’ initial complaint did not state a claim
upon which relief could be granted, the Court dismissed it, but it gave Paras an
opportunity to cure the deficiencies. See ECF No. 6.
Paras has successfully cured the complaint’s deficiencies, and her claims of
race discrimination, retaliation, and a hostile work environment now pass
screening. The FAC is therefore the operative pleading, and the Court DIRECTS
service of the FAC as laid out at the end of this Order.

DISCUSSION
Paras is a pro se litigant, and so the Court liberally construes her pleadings.
Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Accordingly, the Court
examines the FAC in its entirety to determine whether it passes screening. See
Cobb v. JPMorgan Chase Bank, N.A., No. C 12-01372, 2012 WL 533530, at *4
n.9 (N.D. Cal. Oct. 26, 2012). The Court must nonetheless dismiss claims or
complaints that are frivolous, malicious, fail to state a claim for relief, or seek
damages from defendants who are immune from suit. See 28 U.S.C.
§ 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc).
In evaluating whether a complaint fails to state a valid claim for screening
purposes, courts generally apply the pleading standards in Rule 8 of the Federal
Rules of Civil Procedure.1 See Watison, 668 F.3d at 1112; Zixiang Li v. Kerry, 710
F.3d 995, 998 (9th Cir. 2013). Under Rule 8, a complaint must include a “short
and plain statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P. 8(a)(2). To show an entitlement to relief, however, it is not enough for a
complaint to allege “labels and conclusions.” Bell Atl. Corp. v. Twombly, 550 U.S.

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The Court’s screening is done without the benefit of adversarial briefing,
and does not preclude a defendant from later seeking dismissal of the complaint
under Rule 12(b)(6). See Norsworthy v. Beard, 87 F. Supp. 3d 1104, 1111 n.4
(N.D. Cal. 2015).
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544, 555 (2007). Rather, the complaint’s “[f]actual allegations must be enough to
raise a right to relief above the speculative level.” Id.
The FAC asserts three Title VII claims: race discrimination, retaliation, and
a hostile work environment. The Court considers the sufficiency of each in turn.
A.

Racial Discrimination

Paras’s first claim is that she was discriminated against based on her race
during her employment at Tripler Army Medical Center. The FAC’s factual
allegations now suffice to state a claim for racial discrimination for the purposes of
this Court’s screening.
To show a prima facie case of race discrimination under Title VII, an
employee must allege that they (1) are a member of a protected class,
(2) performed their job adequately, (3) suffered an adverse employment action, and
(4) were treated differently from other similarly situated employees not a member
of their protected class. Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018,
1028 (9th Cir. 2006).
Here, the FAC alleges that Paras is Filipino and that she was treated
differently from non-Filipino employees. It alleges that throughout her career,
Paras demonstrated successful job performance. And it now alleges that Paras
suffered adverse employment actions because of her race. For one, the FAC
alleges that following a leadership transition in her department, in late 2022 and

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early 2023, Paras was denied the same leave benefits as other non-Filipino
employees. In one instance, Paras alleges that she was marked as absent without
leave (AWOL)—a designation that remains on her record to this day—whereas
under similar circumstances, other non-Filipino employees were not marked as
such. ECF No. 9, at PageID.33. In denying her request, her supervisor allegedly
said that “you people have to be taught a lesson,” a comment Paras understood to
be referring to her race. Id. In another instance, Paras’ doctor’s note was rejected
as being from “some Filipino doctor,” and she was denied leave, while other nonFilipino employees’ similar leave requests were approved. Id. at PageID.33-34. In
addition, the FAC separately alleges that Paras was terminated despite her
successful job performance, whereas other non-Filipino employees were not
terminated unless they were involved in serious misconduct or had extended poor
performance.
Because the FAC sets forth factual allegations to support each element of
race discrimination, that claim survives screening at this stage.
B.

Retaliation

The FAC also asserts a claim for retaliation. Paras has offered additional
factual allegations about her retaliation claim, and the FAC now passes screening
on that claim, too.

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A prima facie case of retaliation under Title VII requires (1) engagement in a
protected activity, (2) an adverse employment action, and (3) a causal link between
the two. Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000).
Here, Paras alleges that in April 2023, she filed an Equal Employment
Opportunity (EEO) complaint, a protected activity. She says that the following
month, in May 2023, she was required to complete a “Demonstration Project” as
retaliation for filing her complaint. ECF No. 9, at PageID.33-34. While
completing the project, she was not allowed to speak with peers or ask for
clarification or assistance, and she was marked down for not processing lab
slides—even though the processing machines were not working at the time. Id. at
PageID.34. In July 2023, she then applied for another job, but alleges that her
supervisor told the hiring manager not to hire her. And soon after, in August 2023,
Paras was ultimately terminated. Unwarranted poor performance ratings,
unfavorable references, and termination are all classic examples of adverse
employment actions. See, e.g., Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir.
1987) (“[U]ndeserved performance ratings, if proven, would constitute ‘adverse
employment decisions.’”); Hashimoto v. Dalton, 118 F.3d 671, 676 (9th Cir. 1997)
(dissemination of an unfavorable job reference constituted an adverse employment
action). In addition, the short timeline between filing the EEO complaint and the
alleged retaliatory actions provides the causal link between the two. See Ray, 217

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F.3d at 1244 (“[Causation] may be inferred from proximity in time between the
protected action and the allegedly retaliatory employment decision.” (internal
quotation marks omitted)). The FAC therefore states a claim for retaliation under
Title VII, and it survives screening on that point.
C.

Hostile Work Environment

Finally, the FAC asserts a hostile work environment claim. This claim, too,
survives at this stage.
To establish a prima facie hostile work environment claim, Paras must allege
that “(1) the defendant[] subjected her to verbal or physical conduct based on her
race; (2) the conduct was unwelcome; and (3) the conduct was sufficiently severe
or pervasive to alter the conditions of her employment and create an abusive
working environment.” Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1108 (9th
Cir. 2008). Isolated comments—even when offensive—do not rise to that level.
See Manatt v. Bank of Am., NA, 339 F.3d 792, 798-99 (9th Cir. 2003). “Repeated
derogatory or humiliating statements, however, can constitute a hostile work
environment.” Ray, 217 F.3d at 1245.
The FAC now contains sufficient factual allegations to state a plausible
hostile work environment claim. Like the original complaint, the FAC again
alleges that a supervisor asked Paras if she was going to cook her dog because she
was Filipino. And while that comment standing alone may not rise to the level of

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frequency or severity required to state a plausible hostile work environment claim,
Paras has now alleged that she was subjected to an array of other conduct based on
her race. As just a few examples, the new leadership in her office allegedly
constantly questioned her credentials and said they must be from “out of the
country,” even though they are from stateside. ECF No. 9-1, at PageID.36. And as
explained above, her supervisors denied her leave and charged her with AWOL, all
while making comments about her race. Taken together, that conduct may be
sufficiently severe or pervasive to alter the conditions of her employment and
create a hostile work environment.
Accordingly, the hostile work environment claim, too, shall be permitted to
proceed.
CONCLUSION
For the foregoing reasons, the FAC, ECF No. 9, has survived screening, and
is now the operative complaint in this action.
SERVICE ORDER
Accordingly, the Court DIRECTS service of the First Amended Complaint,
ECF No. 9, as follows:
(1)

The Clerk is directed to send a copy of this Order to the United States

Marshal at P.O. Box 50184, Honolulu, HI 96850.
(2)

The Clerk is directed to send Paras: four copies of the First Amended

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Complaint, ECF No. 9; three completed summonses; and three USM-285 forms.
The Clerk is further directed to send Paras an instruction sheet.
(3)

Paras shall complete the forms as directed and submit all of the

documents to the U.S. Marshal in Honolulu, Hawai‘i. The mailing address for the
United States Attorney’s Office for the District of Hawai‘i is 300 Ala Moana
Boulevard, #6-100, Honolulu, HI 96850. The mailing address for the United
States Attorney General is U.S. Department of Justice, 950 Pennsylvania Ave.,
NW, Washington, DC 20530. The mailing address for Lloyd J. Austin III,
Secretary of Defense, is 1000 Defense Pentagon, Washington, DC 20301.
(4)

Upon receipt of these documents, the U.S. Marshal shall deliver a

copy of the First Amended Complaint and completed summons to the United
States Attorney for the District of Hawai‘i, the Attorney General of the United
States, and United States Secretary of Defense Lloyd J. Austin, III as directed by
Paras pursuant to Federal Rule of Civil Procedure 4 without payment of costs.
(5)

Alternatively, if Paras does not wish to use the services of the U.S.

Marshal in effecting service of the First Amended Complaint and summons as
outlined above, she may serve Defendant on her own in accordance with the
procedures set forth in Rule 4 of the Federal Rules of Civil Procedure. Paras is
cautioned that if she fails to comply with this Order and her non-compliance

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prevents timely and proper service as set forth in Federal Rule of Civil Procedure
4(m), this action is subject to dismissal for failure to serve.
(6)

Once served, Defendant shall file an answer or responsive pleading to

the First Amended Complaint within the time set forth in Rule 12 of the Federal
Rules of Civil Procedure.
(7)

After the First Amended Complaint is served and Defendant has filed

an answer or responsive pleading, all further documents submitted to the Court will
be deemed served when they are electronically filed in this Court. The U.S.
Marshal is not responsible for serving these documents on Paras’ behalf.
(8)

Paras shall inform the Court of any change of address by filing a

“NOTICE OF CHANGE OF ADDRESS.” The notice shall contain only
information about the change of address and its effective date and shall not include
any other requests for relief. Failure to file a notice may result in the dismissal of
the action for failure to prosecute under Federal Rule of Civil Procedure 41(b).
IT IS SO ORDERED.
DATED: September 24, 2024, at Honolulu, Hawai‘i.
/s/ Micah W.J. Smith
Micah W.J. Smith
United States District Judge

Civil No. 24-00268 MWJS-WRP; Paras v. Austin; ORDER DIRECTING
SERVICE OF THE FIRST AMENDED COMPLAINT
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