BAUER v. THE CENTER FOR ANIMAL HEALTH & WELFARE

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KELLY LYNN BAUER, :

Plaintiff, :

:

v. : CIVIL ACTION NO. 24-CV-4744

:

THE CENTER FOR ANIMAL :

HEALTH & WELFARE, :

Defendant. :

MEMORANDUM

SCHMEHL, J. /S/ JLS SEPTEMBER 10, 2024

Kelly Lynn Bauer has filed a civil action alleging violations of the Americans with

Disabilities Act, 42 U.S.C. §§ 12112-12117, and the Pennsylvania Human Relations Act, 42 Pa.

Cons. Stat. §§ 951-963. Named as Defendant is the Center for Animal Health & Welfare

(“CFAHW”). Bauer also seeks leave to proceed in forma pauperis. For the following reasons,

the request to proceed in forma pauperis will be granted, and the Complaint will be dismissed.

I. FACTUAL ALLEGATIONS1

Bauer filed her claim using the Court’s preprinted form available to unrepresented

litigants to file employment discrimination claims. She asserts claims based on the termination

of her employment, failure to reasonably accommodate her disability, failure to stop harassment,

and retaliation. (Compl. at 2-3.) In the portion of the form Complaint that asked Bauer to state

the facts of her case, she stated in conclusory terms only that CFAHW created a hostile work

environment after she reported illegal activity by a board member, the board member exploited

1 The facts set forth in this Memorandum are taken from Bauer’s Complaint (ECF No. 3).

The Court adopts the pagination assigned to the Complaint by the CM/ECF docketing system.

her disability to hinder her performance and impede her professional growth, she experienced

retaliation in the form of slander and harassment, her requests for reasonable accommodations

were denied, and she was willfully caused undue mental hardship during her employment. (Id. at

3.)

II. STANDARD OF REVIEW

The Court will grant Bauer leave to proceed in forma pauperis. Accordingly, 28 U.S.C. §

1915(e)(2)(B)(ii) requires the Court to dismiss the Complaint if it fails to state a claim. The

Court must determine whether the Complaint contains “sufficient factual matter, accepted as

true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quotations omitted). ‘“At this early stage of the litigation,’ ‘[the Court will] accept the

facts alleged in [the pro se] complaint as true,’ ‘draw[] all reasonable inferences in [the

plaintiff’s] favor,’ and ‘ask only whether [that] complaint, liberally construed, . . . contains facts

sufficient to state a plausible [] claim.’” Shorter v. United States, 12 F.4th 366, 374 (3d Cir.

2021) abrogation on other grounds recognized by Fisher v. Hollingsworth, ___ F.4th ___, 2024

WL 3820969 (3d Cir. Aug. 15, 2024) (quoting Perez v. Fenoglio, 792 F.3d 768, 774, 782 (7th

Cir. 2015)). Conclusory allegations do not suffice. Iqbal, 556 U.S. at 678. Because Bauer is

proceeding pro se, the Court construes the allegations of the Complaint liberally. Vogt v. Wetzel,

8 F.4th 182, 185 (3d Cir. 2021). However, ‘“pro se litigants still must allege sufficient facts in

their complaints to support a claim.’” Id. (quoting Mala, 704 F. 3d at 245).

III. DISCUSSION

Bauer asserts claims based on termination of her employment, failure to reasonably

accommodate her disability, failure to stop harassment, and retaliation. To state a claim for

employment discrimination under the ADA, a plaintiff must allege that she has a disability

within the meaning of the ADA, she was ‘“otherwise qualified to perform the essential functions

of the job, with or without reasonable accommodations by the employer[;]’ and she ‘suffered an

otherwise adverse employment decision as a result of discrimination.’” Morgan v. Allison Crane

& Rigging LLC, No. 23-1747, 2024 WL 4033125, at *3 (3d Cir. Sept. 4, 2024) (quoting

Eshleman v. Patrick Indus., Inc., 961 F.3d 242, 245 (3d Cir. 2020)). A person is disabled within

the meaning of the ADA if they: (1) have ‘“a physical or mental impairment that substantially

limits one or more’ of their ‘major life activities’; (2) have ‘a record of such an impairment’; or

(3) are ‘regarded as having such an impairment.’” Id. (quoting 42 U.S.C. § 12102(1)). Claims

under the PHRA are interpreted coextensively with their federal counterparts. Atkinson v.

LaFayette Coll., 460 F.3d 447, 454 n.6 (3d Cir. 2006) (citing Kelly v. Drexel Univ., 94 F.3d 102,

105 (3d Cir. 1996)) (noting that Pennsylvania courts “generally interpret the PHRA in accord

with its federal counterparts”). Bauer has not alleged that she is a qualified individual with a

disability. She has not offered any facts about her alleged disability at all. Thus, her ADA and

PHRA claims based on disability discrimination are not plausible as pled.

The Court also understands Bauer to allege a hostile work environment claim based on

her statement that CFAHW failed to stop harassment against her by a board member. To plead a

hostile work environment claim, a plaintiff must allege: (1) she suffered intentional

discrimination because of membership in a protected class; (2) the discrimination was severe or

pervasive; (3) the discrimination detrimentally affected her; (4) it would have detrimentally

affected a reasonable person in like circumstances; and (5) a basis for employer liability is

present. Starnes v. Butler Cnty. Ct. of Common Pleas, 50th Jud. Dist., 971 F.3d 416, 428 (3d

Cir. 2020) (alterations, internal quotations, and citations omitted); Felder v. Penn Mfg. Indus.,

Inc., 303 F.R.D. 241, 243 (E.D. Pa. 2014). Bauer’s assertion of a hostile work environment is

conclusory. While she asserts that she that CFAHW created a hostile work environment after

she reported illegal activity by a board member, she does not describe any event to support the

claim or allege that the discrimination was due to her disability. Because she has not alleged

facts to support the elements of a hostile work environment claim, it too will be dismissed.

Bauer also states she was the subject of retaliation. The ADA retaliation provision, 42

U.S.C. § 12203(a), states that “[n]o person shall discriminate against any individual because such

individual has opposed any act or practice made unlawful by [the ADA] or because such

individual made a charge . . . under [the ADA].” Id. This provision is similar to Title VII’s

prohibition of retaliation. See 42 U.S.C. § 2000e–3(a). Accordingly, courts analyze ADA

retaliation claims under the same framework employed for retaliation claims arising under Title

VII. Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997) (citing cases). A plaintiff

states a retaliation claim based on employment discrimination if she “pleads sufficient factual

allegations to raise a reasonable expectation that discovery will reveal evidence of the following

elements: (1) she engaged in conduct protected by Title VII [or here the ADA]; (2) the employer

took adverse action against her; and (3) a causal link exists between her protected conduct and

the employer’s adverse action.” Connelly v. Lane Constr. Corp., 809 F.3d 780, 789 (3d Cir.

2016);; Carvalho-Grevious v. Delaware State Univ., 851 F.3d 249, 257 (3d Cir. 2017). A

general complaint about unfair treatment does not constitute protected activity; a plaintiff must

show that she complained specifically about unlawful discrimination. Barber v. CSX Distrib.

Servs., 68 F.3d 694, 702 (3d Cir. 1995). While Bauer alleges that she reported illegal activity by

a board member, the board member exploited her disability to hinder her performance and

impede her professional growth, and she experienced retaliation in the form of slander and

harassment (Compl. at 3), she does not allege facts to support these conclusory assertions. As

noted, she does not describe her disability or any act by her employer that was based on that

disability. While she asserts she reported “illegal activity” by a board member, she does not

describe to whom she reported it, that she complained specifically about unlawful disability

discrimination, or how the illegal activity involved conduct protected by the ADA, so as to allege

a causal link between protected conduct and an adverse employment action. Accordingly, this

claim is also not plausible as pled.

IV. CONCLUSION

For the foregoing reasons, the Court will dismiss Bauer’s ADA and PHRA claims

without prejudice. Cognizant of Bauer’s pro se status, the Court will grant her an opportunity to

“flesh out [her] allegations by . . . explaining in [an] amended complaint the ‘who, what, where,

when and why’ of [her] claim.” See Davis v. Internal Revenue Serv., No. 21-4728, 2022 WL

407639, at *3 (E.D. Pa. Feb. 9, 2022); (citing Gambrell v. S. Brunswick Bd. of Educ., No. 18-

16359, 2019 WL 5212964, at *4 (D.N.J. Oct. 16, 2019)). An appropriate order dismissing the

Complaint without prejudice and with further information about filing an amended complaint

will be entered separately.2

BY THE COURT:

/s/ Jeffrey L. Schmehl

JEFFREY L. SCHMEHL, J.

2 Bauer’s motion to appoint counsel will be denied as premature pending her submission

of an amended complaint. See Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993) (stating that, in

determining whether to appoint pro bono counsel, the Court must first consider, as a threshold

matter, whether the plaintiff’s claim has “some merit in fact and law”).