Kelley v. Dismas Home of New Hampshire

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
SUSAN KELLEY
v. Civil No. 26-cv-460-JL-AJ
DISMAS HOME OF NEW HAMPSHIRE, INC.
REPORT AND RECOMMENDATION
Self-represented Plaintiff, Susan Kelley, filed a Complaint (Doc. No. 1) asserting that her
employer, Dismas Home of New Hampshire, Inc., violated her rights under the Americans with
Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”) by
terminating her employment. She seeks damages. As Plaintiff is proceeding in forma pauperis,
the Complaint is before the court for preliminary review pursuant to 28 U.S.C. § 1915(e)(2) and
LR 4.3(d)(2). For reasons explained below, Plaintiff’s Title VII claim should be dismissed for
failure to state a claim upon which relief can be granted. Her ADA claims are the subject of the
Service Order issued on this date.
PRELIMINARY REVIEW STANDARD
In conducting preliminary review under 28 U.S.C. § 1915(e)(2) and LR 4.3(d)(2), the
court may dismiss claims if: it lacks subject matter jurisdiction, a defendant is immune from the
relief sought, the complaint fails to assert sufficient facts to state a claim upon which relief might
be granted, or the action is frivolous or malicious. See 28 U.S.C. § 1915(e)(2); LR 4.3(d)(2). To
determine if a Complaint states a claim upon which relief can be granted, the court takes as true
the facts asserted in the Complaint and inferences reasonably drawn from those facts, then strips
away the legal conclusions, and considers whether the factual allegations and reasonable
inferences construed favorably to Plaintiff state a plausible claim for relief. See Hernandez-
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Cuevas v. Taylor, 723 F.3d 91, 102-03 (1st Cir. 2013) (citing Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009)). The court construes complaints filed by self-represented parties liberally. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).
CLAIMS
Plaintiff asserts the following claims for damages:
1. Defendant terminated Plaintiff two weeks after hiring her, following her
hospitalization for medical or mental health reasons and her presentation of a
doctor’s note, in a manner amounting to discrimination on the basis of her
disability, rendering Defendant liable under the ADA.
2. Defendant terminated Plaintiff without considering her proposal for a
reasonable accommodation of her disability, rendering Defendant liable under the
ADA.
3. Defendant terminated Plaintiff in retaliation for her request for a
reasonable accommodation of her disability, in violation of her rights under the
ADA.
4. Plaintiff’s termination violated her rights under Title VII.
DISCUSSION
I. ADA Claims
A. Disability Discrimination
The ADA prohibits discrimination against a “qualified individual” because of the
individual’s disability. 42 U.S.C. § 12112(a). To put forward a prima facia ADA discrimination
claim, Plaintiff must show that:
(1) “she was disabled within the meaning of the statute;” (2) “she was qualified to
perform the essential functions of the job, either with or without a reasonable
accommodation;” and (3) “the employer took adverse action against her because
of the disability.”
Serrano-Colon v. United States Dep’t of Homeland Sec., 121 F.4th 259, 277 (1st Cir. 2024)
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(citations omitted) (elements of analogous Rehabilitation Act disability discrimination claim).
Plaintiff’s disability discrimination claim survives preliminary review. Those claims are
the subject of the Service Order issued on this date.
B. Reasonable Accommodation
Disability discrimination actionable under the ADA “includes any failure to make
‘reasonable accommodations to the known physical or mental limitations of an otherwise
qualified individual with a disability.’” Valle-Arce v. P.R. Ports Auth., 651 F.3d 190, 197-98
(1st Cir. 2011) (footnote omitted) (citing 42 § 12112(b)(5)(A)). To make out a reasonable
accommodation claim, Plaintiff must show:
(1) that she suffers from a disability, as defined by the ADA, (2) that she is an
otherwise qualified individual, meaning that she is “nevertheless able to perform
the essential functions of [her] job, either with or without reasonable
accommodation,” and (3) that the [employer] knew of her disability and did not
reasonably accommodate it.
Valle-Arce v. P.R. Ports Auth., 651 F.3d 190, 198 (1st Cir. 2011) (footnote and citations
omitted).
Plaintiff’s reasonable accommodation claim survives preliminary review. Those claims
are the subject of the Service Order issued on this date.
C. ADA Retaliation
To establish a claim of retaliation violating the ADA, “a plaintiff must show that (1) she
engaged in protected conduct, (2) she suffered an adverse employment action, and (3) there was
a causal connection between the protected conduct and the adverse employment action.” Valle-
Arce v. P.R. Ports Auth., 651 F.3d 190, 198 (1st Cir. 2011) (citation and internal quotation marks
omitted). If Plaintiff succeeds in making this prima facie showing,
the burden then shifts to [her employer] “to offer a legitimate, nonretaliatory
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reason for [its] actions." If [the employer] meets its burden, the burden shifts
back to [Plaintiff] “to show that the [articulated] reason was mere
pretext.” [Plaintiff] “bears the ultimate burden to create a plausible inference that
the employer had a retaliatory motive.”
Delgado Echevarria v. AstraZeneca Pharm. LP, 856 F.3d 119, 134 (1st Cir. 2017) (citations
omitted).
Plaintiff’s ADA retaliation claim survives preliminary review. Those claims are the
subject of the Service Order issued on this date.
II. Title VII
Without elaborating on her membership in any class of people protected by Title VII,
Plaintiff asserts that Defendant violated her rights under Title VII.
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended,
prohibits employment discrimination on the basis of race, color, religion, sex, or
national origin. Title VII prohibits both intentional discrimination (known as
“disparate treatment”) as well as, in some cases, practices that are not intended to
discriminate but in fact have a disproportionately adverse effect on minorities
(known as “disparate impact”).
Ricci v. DeStefano, 557 U.S. 557, 577 (2009). “As a precondition to the commencement of a
Title VII action in court, a complainant must first file a charge with the Equal Employment
Opportunity Commission (EEOC or Commission).” Fort Bend Cty. v. Davis, 587 U.S. 541, 543
(2019) (citing 42 U.S.C. §2000e-5(e)(1), (f)(1)).
Plaintiff has failed to plead any facts suggesting she suffered any discrimination on the
basis of her race, color, religion, sex, or national origin. Furthermore, Plaintiff’s EEOC charge,
attached as an exhibit to her Complaint, does not characterize Defendant’s conduct as violating
her rights under Title VII. See Doc. No. 1-1, at 9-10. Accordingly, the district judge should
dismiss Plaintiff’s Title VII claims for failing to satisfy Title VII’s claim processing rule, and for
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failure to state a claim upon which relief can be granted.
CONCLUSION
For the foregoing reasons, the district judge should dismiss Plaintiff’s Title VII claims for
failure to state a claim upon which relief can be granted. Any objections to this Report and
Recommendation must be filed within fourteen days of receipt of this notice. The objection
period may be extended upon motion. Failure to file any objection within the specified time
waives the right to appeal the district court’s Order. See Santos-Santos v. Torres-Centeno, 842
F.3d 163, 168 (1st Cir. 2016). Only those issues raised in the written objections “‘are subject to
review in the district court,’” and any issues “‘not preserved by such objection are precluded on
appeal.’” Id. (citations omitted).
____________________________
Andrea K. Johnstone
United States Magistrate Judge
June 11, 2026
cc: Susan Kelley, pro se
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