SHANK v. JUSHI HOLDINGS INC et al

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ELIZABETH L. MCNULTY SHANK, 	:
Plaintiff, 	:
:
v. 	: 	CIVIL ACTION NO. 26-CV-5234
:
JUSHI HOLDINGS INC, et al., 	:
Defendants. 	:
MEMORANDUM
Pappert, J. 	October 15, 2026
Elizabeth L. McNulty Shank filed this pro se civil action alleging claims of
employment discrimination and retaliation against Jushi Holdings Inc., doing business
as Beyond Hello; JMGT LLC; Pennsylvania Medical Solutions, LLC (PAMS); and
Franklin Bioscience – Penn LLC (hereinafter collectively referred to as “Beyond
Hello”).1 (Dkt. No. 2.) Shank also filed a Motion to Proceed In Forma Pauperis (Dkt.
No. 1) and a Motion to Appoint Counsel (Dkt. No. 4). For the following reasons, the
Court will grant Shank leave to proceed in forma pauperis, dismiss the Complaint
without prejudice to Shank filing an amended complaint, and deny her Motion to
Appoint Counsel without prejudice.
1 The Complaint does not specifically identify which of these four defendants is
Shank’s employer, and Shank does not differentiate between the corporate entities in the
Complaint, instead referring to them collectively as “Defendant” or “Defendants.”
Case 2:26-cv-05234-GJP Document 9 Filed 10/15/26 Page 1 of 16

2
I2
Shank claims she began her employment “with Defendant” as a patient
consultant in October 2022. (Id. ¶ 12.) When she returned to work “following medical
leave,”3 Shank allegedly “faced hurdles regarding her disability,” and was forced to
“seek formal corporate permission” to use her “medically necessary walker on the sales
floor.” (Id. ¶14.)
In September 2024, security guard Chris Shane told Shank that “her disabilities
were ‘unfair’ and a ‘burden’ to her coworkers, and that she “’leaned’ on her disabilities
to make things easier.” (Id. ¶ 15.) Shank objected and immediately reported this
“harassment to the General Manager” and requested to go home early “to prevent a
medical panic attack induced by the hostile environment.” (Id. ¶ 16.) Shortly
thereafter, Shank was called into a disciplinary meeting with the assistant general
manager, Chris Ruth, who issued a formal write-up against her, “penalizing [Shank] for
her defensive reaction to the security guard’s severe harassment.” (Id. at 17.) This was
Shank’s first formal disciplinary infraction. (Id.) During the meeting, Ruth allegedly
admitted that Shane’s comments were inappropriate, stating that “Nobody should talk
to anyone that way, except Mary. [Mary Garafalo] has a pass because she was shot in
the head and I can’t imagine what that was like.” (Id. ¶ 18.) Shank claims that by
making this statement, Ruth “established that specific individuals could be immune
from corporate anti-harassment policies.” (Id. ¶ 19.)
2 The factual allegations are taken from the Complaint (“Compl.” (Dkt. No. 2).) The
Court adopts the sequential pagination supplied by the CM/ECF docketing system.
3 Shank alleges no facts regarding the date or length of medical leave, nor does she
provide any information as to why the medical leave was taken or whether it was related to
a known disability.
Case 2:26-cv-05234-GJP Document 9 Filed 10/15/26 Page 2 of 16

3
In October 2024, Garafalo allegedly began a “targeted campaign of harassment”
against Shank by “attacking [Shank’s] disability, age, and temporary unhoused status.”
(Id. ¶ 20.) Garafalo allegedly called Shank a “socialist,” and told her to “leave the
country.” (Id. ¶ 21.) Garafalo also told Shank that her “adult children should be
‘taking care of’ her” while she awaited a decision from the Social Security
Administration. (Id.) Shank requested that Garafalo refrain from speaking to her
unless the communication was work-related, but Garafalo continued to target her “with
taunting, sarcastic greetings and farewells accompanied by a visible smirk.” (Id. ¶¶ 22-
23.) Shank claims that when she sought to enforce a workplace boundary, human
resources initially told her that “setting personal boundaries with a coworker went
against the company’s ‘happy workplace policy.’” (Id. ¶ 24.) Shank then spoke to
general manager Eric Rodrigo, who counseled Garafalo and altered shifts to
temporarily separate Garafalo and Shank. (Id. ¶ 26.) Garafalo ceased making “explicit
offensive comments” for approximately six weeks. (Id. ¶ 33.) At some point, however,
Garafalo “resumed her passive-aggressive harassment by greeting [Shank] with
annoyed facial expressions and an exaggerated, disingenuous, ‘sing-songy’ tone.” (Id. ¶
34.) Shank reported this behavior to a manager who then “counseled Garafalo that she
was not required to greet [Shank].” (Id. ¶ 35.)
In October 2024, an unidentified coworker approached Shank and told her that
“Garafalo was actively soliciting other employees to submit false or exaggerated
complaints” about Shank. (Id. ¶ 27.) Shank avers that Garafalo was attempting “to
orchestrate a third disciplinary write-up against [her]” because under corporate policy,
“a third infraction would trigger automatic termination.” (Id. ¶ 28.) Shank claims that
Case 2:26-cv-05234-GJP Document 9 Filed 10/15/26 Page 3 of 16

4
Garafalo fabricated a complaint to human resources regarding a conversation they
shared, falsely claiming that the interaction took place on the medical dispensary floor
in front of patients when it occurred in a private room. (Id. ¶¶ 29-30.) Without
conducting its own investigation, Shank avers that “Defendant” relied on Garafalo’s
“fabricated narrative” and issued a formal disciplinary write-up against her in October
2024. (Id. ¶¶ 31.) This was Shank’s second disciplinary infraction. (Id.) Shank
contends that the decision to penalize her based on an unverified accusation constituted
retaliation. (Id. ¶ 32.)
Shank alleges that Garafalo disregarded prior “counseling directives” on August
9, 2025, when Garafalo greeted her “in a passive-aggressive, sing-songy manner.” (Id. ¶
37.) When Shank told Garafalo that “such contact was ‘not necessary,’” Garafalo yelled,
slammed objects, and aggressively told Shank to “go get help” when Shank called for a
manager. (Id. ¶ 38.) Shank claims that management refused to review security
footage, and instead, issued another disciplinary write-up against her, citing a violation
of the corporate “happy workplace” policy. (Id. ¶ 40.)
Shank says she was targeted by Garafalo on December 6, 2025, when Garafalo
sarcastically greeted her and then stomped away. (Id. ¶ 41.) That same day, Shank
filed “a formal harassment report via Defendant’s anonymous employee portal,
‘Speakfully,’” to report “ongoing disability-based harassment, a hostile work
environment, and unlawful retaliation for her prior complaints.” (Id. ¶ 42.) Shank
claims that “[i]n direct retaliation for utilizing the ‘Speakfully’ portal, Defendant issued
[her] another write-up, refused to provide specific grounds for the discipline, and failed
to offer a signature line.” (Id. ¶ 43.) She alleges that she was also “permanently
Case 2:26-cv-05234-GJP Document 9 Filed 10/15/26 Page 4 of 16

5
demoted . . . to the Check-In zone,” removed from “Register shifts,” and her Saturday
shifts were overlapped with “Garafalo . . . to maximize the hostile work environment.”
(Id. ¶ 44.)
On December 20, 2025, Shank identified a water leak originating from the
facility’s lobby ceiling, that she claims went unaddressed “since mid-November and
caused a severe buildup of toxic mold.” (Id. ¶ 45.) The next day, “Defendant placed a
tarp and bucket on the floor,” instead of “remediating the hazardous conditions.” (Id. ¶
46.) On December 26, 2025, Shank “formally reported that exposure to the ceiling leak
and corresponding mold buildup had induced severe medical symptoms directly
aggravating her reported disability.” (Id. ¶ 47.) She claims that “Defendant filed a
workers’ compensation claim regarding [her] mold-induced illness under the employer
name JMGT, LLC, and directed her to seek evaluation at an urgent care facility.” (Id. ¶
48.) She alleges that she “required four (4) non-consecutive days of medical absence”
because of symptoms associated with her “reported disability and toxic workplace
exposure.” (Id. ¶ 49.) She also claims that “Defendant” failed to accommodate her and
“assign[ed] her to work shifts directly adjacent to the water leak and ineffective water
remediation system.” (Id. ¶ 50.) Shank was terminated on January 15, 2026, because
of “unprofessional conduct and other things that have come to light.” (Id. ¶ 51.) She
claims the reasoning given “was a transparent pretext used by Defendant to mask its
true retaliatory motives,” including her workers’ compensation claim, mold exposure
reports, and internal complaints regarding disability discrimination. (Id. ¶ 52.)
Shank raises claims under the Americans with Disabilities Act and Age
Discrimination in Employment Act of 1967 based on disability- and age-based
Case 2:26-cv-05234-GJP Document 9 Filed 10/15/26 Page 5 of 16

6
discrimination, and alleges that Defendants failed to accommodate her disability,
subjected her to a hostile work environment, and retaliated against her. (Compl. at 5-
7.) She avers that she “is an individual with a disability within the meaning” of the
ADA and “over forty (40) years of age,” which is “within the protected age category”
under the ADEA. (Compl. at ¶¶ 13, 54, 64.) Shank alleges she filed a charge of
discrimination based on disability, age, and retaliation with the Equal Employment
Opportunity Commission (“EEOC”) and received a Notice of Right to Sue Letter on
April 30, 2026.4 (Id. ¶¶ 9-10; see also Dkt. No. 5.) She seeks monetary damages. (Id. at
8.)
II
Because Shank appears to be unable to pay the fees to commence this civil
action, the Court will grant her leave to proceed in forma pauperis. Accordingly, the
Complaint is subject to screening pursuant to 28 U.S.C. § 1915(e)(2)(B), which requires
the Court to dismiss the Complaint if, among other things, it fails to state a claim.
Whether a complaint fails to state a claim under § 1915(e)(2)(B)(ii) is governed by the
same standard applicable to motions to dismiss under Federal Rule of Civil Procedure
12(b)(6), see Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999), which requires
the Court to 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)); Talley v. Wetzel, 15 F.4th 275, 286 n.7 (3d Cir. 2021). At the screening stage,
4 The Charge of Discrimination lists “Beyond Hello/Franklin Bioscience” as the
employer. (Dkt. No. 5 at 6.)
Case 2:26-cv-05234-GJP Document 9 Filed 10/15/26 Page 6 of 16

7
the Court will accept the facts alleged in a pro se complaint as true, draw all reasonable
inferences in the plaintiff’s favor, and ask only whether that complaint 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, 115 F.4th
197 (3d Cir. 2024).
“A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556).
“Although the plausibility standard does not impose a probability requirement,
Twombly, 550 U.S. 556, it does require a pleading to show “more than a sheer
possibility that a defendant has acted unlawfully,” Iqbal, 556 U.S. at 678. “[T]he
plausibility paradigm . . . applies with equal force to analyzing the adequacy of claims
of employment discrimination.” Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir.
2009) (quotations omitted). To state an employment discrimination claim, as with any
other claim, a plaintiff must “put forth allegations that raise a reasonable expectation
that discovery will reveal evidence of the necessary element.” 	Id. at 213 (quotations
omitted).
The Court construes the allegations of a pro se litigant liberally. Vogt v. Wetzel,
8 F.4th 182, 185 (3d Cir. 2021) (citing Mala v. Crown Bay Marina, Inc., 704 F.3d 239,
244-45 (3d Cir. 2013)). However, “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at
678. “[P]ro se litigants still must allege sufficient facts in their complaints to support a
claim.” Vogt, 8 F.4th at 185 (quoting Mala, 704 F.3d at 245). An unrepresented litigant
Case 2:26-cv-05234-GJP Document 9 Filed 10/15/26 Page 7 of 16

8
also “cannot flout procedural rules - they must abide by the same rules that apply to all
other litigants.” Id. (quoting Mala, 704 F.3d at 245). In that regard, a complaint may
be dismissed for failing to comply with Federal Rule of Civil Procedure 8. Garrett v.
Wexford Health, 938 F.3d 69, 91 (3d Cir. 2019). Rule 8 requires a pleading to include a
“short and plain statement showing that the pleader is entitled to relief,” as well as a
statement of the court’s jurisdiction and a demand for the relief sought. Fed. R. Civ. P.
8(a).
III
Federal Rule of Civil Procedure 8 requires a complaint to describe actions taken
by a defendant in relation to the plaintiff’s claims in a manner that is not ambiguous or
confusing. Garrett, 938 F.3d at 93. In determining whether a pleading meets Rule 8’s
“plain” statement requirement, a court must “ask whether, liberally construed, a
pleading ‘identifies discrete defendants and the actions taken by these defendants’ in
regard to the plaintiff’s claims.” Id. (citation omitted). “[A] pleading that is so ‘vague or
ambiguous’ that a defendant cannot reasonably be expected to respond to it will not
satisfy Rule 8.” Id. The important consideration for the court is whether “a pro se
complaint’s language . . . presents cognizable legal claims to which a defendant can
respond on the merits.” Id. at 94. In other words, a complaint must provide factual
details about what each defendant did, including sufficient information about when,
where, and under what circumstances the relevant events took place, to both put the
defendants on notice of what they are accused of doing and to support the necessary
elements of a claim.
Case 2:26-cv-05234-GJP Document 9 Filed 10/15/26 Page 8 of 16

9
Shank’s Complaint has many defects rendering her claims not plausible.
Fundamentally, to proceed with an ADA or an ADEA claim, a plaintiff must allege an
employment relationship with the defendant. Clackamas Gastroenterology Assocs., P.C.
v. Wells, 538 U.S. 440, 448-450 (2003) (determining that an employer, for the purposes
of the ADA and other antidiscrimination laws, is an entity that “[c]an hire and fire
employees, can assign tasks to employees and supervise their performance . . ..”);
Edwards v. Borough of Dickson City, 994 F. Supp. 2d 616, 622 (M.D. Pa. 2014) (“Under
the ADEA, a plaintiff can only sue his employer, an employment agency, or a labor
organization.” (citing 29 U.S.C. § 623)); see also Stinnett v. Delta Air Lines, Inc., 278 F.
Supp. 3d 599, 613 (E.D.N.Y. 2017) (“An individual may not bring an ADA suit against a
non-employer.” (citing Clackamas Gastroenterology Assocs., P. C. v. Wells, 538 U.S. 440,
450 (2003)). This includes the ADA’s anti-retaliation remedy, 42 U.S.C. § 12203(a),
which is unavailable in employment-related disputes against non-employer defendants,
see D’Angelo v. Sch. Dist. of Phila., No. 25-5330, 2025 WL 3254821, at *6 (E.D. Pa. Nov.
21, 2025) (citing Hiler v. Brown, 177 F.3d 542, 546 (6th Cir. 1999)).
Shank names as defendants four corporate entities, but does not explicitly
identify which, if any, of these entities was her employer. She also does not
differentiate between these entities in making her allegations, instead referring to
them collectively throughout the Complaint as “Defendant” or “Defendants.” This is
not a proper manner of pleading the involvement of any defendant. A plaintiff
generally cannot state a claim by repeatedly and collectively referring to the
“defendants” as a group without clarifying the specific basis for each defendant’s
liability. See Lawal v. McDonald, 546 F. App’x 107, 113 (3d Cir. 2014) (agreeing with
Case 2:26-cv-05234-GJP Document 9 Filed 10/15/26 Page 9 of 16

10
the district court that the repeated and collective use of the word “Defendants” “fail[ed]
to name which specific Defendant engaged in the specific conduct alleged’”); see also
Hudson v. McKeesport Police Chief, 244 F. App’x 519, 522 (3d Cir. 2007) (per curiam)
(affirming dismissal of defendant who was only named in caption of case).
The circumstances of Shank’s alleged claims, and how they relate to each of the
named defendants, are also unclear. Having reviewed Shank’s submission in its
entirety and construing her allegations liberally, they do not meet Rule 8’s “plain”
statement requirement. Shank’s Complaint fails to state a claim against any of the
defendants, because it either fails to allege their personal involvement or fails to
present claims that discrete defendants could identify and respond to on the merits in
compliance with Federal Rule of Civil Procedure 8. See Garrett, 938 F.3d at 94.
Accordingly, Shank’s Complaint will be dismissed on this basis. See Salahuddin v.
Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (explaining that Rule 8 permits dismissal where
the complaint “is so confused, ambiguous, vague, or otherwise unintelligible that its
true substance, if any, is well disguised”); Afzal v. N.J. Bd. of Med. Examiners, No. 22-
1609, 2022 WL 4533826, at *3 (3d Cir. Sept. 28, 2022) (per curiam) (affirming dismissal
of complaint pursuant to Rule 8 because plaintiff failed to plead adequate factual
content to support a reasonable inference that defendants were liable and failed to
present cognizable legal claims to which defendants could respond on the merits).
The Court will permit Shank to file an amended complaint. Any amended
complaint must clearly describe the factual basis for Shank’s claims and how the claims
relate to the named defendants. “[A]lthough the plausibility standard does not impose
a probability requirement, it does require a pleading to show more than a sheer
Case 2:26-cv-05234-GJP Document 9 Filed 10/15/26 Page 10 of 16

11
possibility that a defendant has acted unlawfully.” Connelly v. Lane Const. Corp., 809
F.3d 780, 786 (3d Cir. 2016) (internal quotation marks and citations omitted). “A
complaint that pleads facts merely consistent with a defendant’s liability stops short of
the line between possibility and plausibility of entitlement to relief.” Id. (citation
modified); see also Schuylkill Energy Res., Inc. v. Pa. Power & Light Co., 113 F.3d 405,
417 (3d Cir. 1997) (the Court is not required “to accept as true unsupported conclusions
and unwarranted inferences.”).
As noted, Shank’s claims are also fatally flawed in other respects. 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, 114 F. 4th 214, 220-21 (3d
Cir. 2024) (quoting Eshleman v. Patrick Indus., Inc., 961 F.3d 242, 245 (3d Cir. 2020)
(citation modified)). The discrimination element encompasses claims that an employer
failed to make reasonable accommodations for the plaintiff’s disabilities. Taylor v.
Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999). To state a claim for a failure
to accommodate under the ADA, a plaintiff must allege sufficient facts to support a
reasonable inference that: “(1) [s]he was disabled and [her] employer knew it; (2) [s]he
requested an accommodation or assistance; (3) [her] employer did not make a good faith
effort to assist; and (4) [s]he could have been reasonably accommodated.” Capps v.
Mondelez Global, LLC, 847 F.3d 144, 157 (3d Cir. 2017) (quoting Armstrong v. Burdette
Tomlin Mem’l Hosp., 438 F.3d 240, 246 (3d Cir. 2006)); see also Marquis v. Phila. Gas
Case 2:26-cv-05234-GJP Document 9 Filed 10/15/26 Page 11 of 16

12
Works, No. 25-7005, 2026 WL 66890, at *2 (E.D. Pa. Jan. 8, 2026). To state a claim for
a hostile work environment in the context of the ADA, a plaintiff must allege that (1)
she is a qualified individual with a disability under the ADA; (2) she was subject to
unwelcome harassment; (3) her employer harassed her because of her disability or
because of a request for an accommodation; (4) the harassment was sufficiently severe
or pervasive to alter the conditions of plaintiff’s employment and to cause an abusive
working environment; and (5) the defendant employer knew or should have known of
the harassment and failed to take prompt effective remedial action. See Walton v.
Mental Health Ass’n of Se. Pa., 168 F.3d 661, 667 (3d Cir. 1999).
Individuals are 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)). Major life activities include, inter
alia, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping,
walking, standing, lifting, bending, speaking, breathing, learning, reading,
concentrating, thinking, communicating, and working, and impairment of the operation
of a major bodily function. § 12102(2)(A), (B).
Shank merely states in conclusory terms that she is disabled and is subjected to
ongoing disability-based discrimination, including a hostile work environment and the
denial of reasonable accommodations.5 (Compl. at 5-6.) This is insufficient to allege
5 Shank also alleges retaliation. The ADA’s anti-retaliation provision states in
relevant part that “no person shall discriminate against any individual because such
individual has opposed any act or practice made unlawful by [the ADA]” and that it is
unlawful to “coerce, intimidate, threaten, or interfere with any individual in the exercise or
enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or
her having aided or encouraged any other individual in the exercise or enjoyment of, any
Case 2:26-cv-05234-GJP Document 9 Filed 10/15/26 Page 12 of 16

13
the elements of an ADA claim. A complaint must allege enough facts to “raise a right to
relief above the speculative level.” See Twombly, 550 U.S. at 555 (explaining that “a
plaintiff’s obligation to provide the grounds of [her] entitlement to relief requires more
than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do,” because “courts are not bound to accept as true a legal conclusion
couched as a factual allegation” (cleaned up and citation omitted)). “A plaintiff cannot
survive dismissal just by alleging the conclusion to an ultimate legal issue.” Martinez
v. UPMC Susquehanna, 986 F.3d 261, 266 (3d Cir. 2021).
Other than her conclusory statement that she “is an individual with a disability
within the meaning” of the ADA and utilized a walker upon her return from an
unexplained medical leave (see Compl. ¶¶ 13-14, 54), Shank alleges no facts to suggest
she suffered from a disability or was regarded as having a disability within the
meaning of the ADA. She fails to allege any facts about how or why she is disabled or
how that disability limits a major life activity, rendering her ADA claims implausible.
Accord, Atamian v. Burns, 236 F. App’x 753, 755 (3d Cir. 2007) (per curiam) (affirming
district court’s dismissal of ADA claim where the plaintiff “failed to allege that he is a
right granted or protected by [the ADA].” 42 U.S.C. § 12203(a) and (b). This provision is
similar to Title VII of the Civil Rights Act of 1964’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 plausible 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, 809 F.3d at 789; 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. See Barber v. CSX Distrib. Servs., 68 F.3d 694, 702 (3d Cir.
1995).
Case 2:26-cv-05234-GJP Document 9 Filed 10/15/26 Page 13 of 16

14
disabled person within the meaning of the ADA”); see also Van Der Poel v. Mannheim
Auto Auction, No. 08-5607, 2009 WL 1754598, at *1 (E.D. Pa. June 18, 2009) (“Even
accepting, as the Court must, all the allegations in the Complaint as true, Plaintiff’s
claim under the ADA fail [sic] because Plaintiff has failed to allege that he is a disabled
person within the meaning of the ADA.”); Marquis v. Piedmont Airlines, No. 26-3972,
2026 WL 2018438, at *2 (E.D. Pa. Jul. 10, 2026) (holding that conclusory allegation of
disability made discrimination claim implausible; disability-based hostile work
environment also required allegation that Marquis was a qualified individual with a
disability; and retaliation claim required she allege that she engaged in conduct
protected by the ADA).
Also, to establish a prima facie case of age discrimination under the ADEA, a
plaintiff must allege facts to support that “(1) [she] is at least forty years old; (2) [she]
suffered an adverse employment decision; (3) [she] was qualified for the position in
question; and (4) [she] was ultimately replaced by another employee who was
sufficiently younger so as to support an inference of a discriminatory motive.”6 Willis v.
UPMC Children’s Hosp. of Pittsburgh, 808 F.3d 638, 644 (3d Cir. 2015) (citing Burton v.
Teleflex Inc., 707 F.3d 417, 426 (3d Cir. 2013)).
Shank avers that she is “over forty (40) years of age . . . within the protected age
category” under the ADEA. (Compl. ¶ 64.) She does not identify her date of birth or
even the year in which she was born. Putting that issue aside, the only fact Shank
alleges with respect to her claim of age discrimination is that Garafalo made a “hostile
6 “Where the plaintiff is not directly replaced, the fourth element is satisfied if the
plaintiff can provide facts which ‘if otherwise unexplained, are more likely than not based
on the consideration of impermissible factors.’” Willis, 808 F.3d at 644 (quoting Pivirotto v.
Innovative Sys., Inc., 191 F.3d 344, 352 (3d Cir. 1999)).
Case 2:26-cv-05234-GJP Document 9 Filed 10/15/26 Page 14 of 16

15
remark[] stating that [Shank’s] adult children should be ‘taking care’ of [Shank].” (Id.
¶¶ 21, 66.) She also alleges in conclusory fashion only that “Defendants” terminated
her and “treated her less favorably than substantially younger employees.” (Id. ¶ 68.)
Shank fails to plausibly assert an age discrimination claim because she does not
sufficiently connect her age to her termination, and she does not provide any facts
explaining how or when she was treated less favorably than other employees. See
Sarullo v. U.S. Postal Serv., 352 F.3d 789, 799 (3d Cir. 2003) (explaining that, for
statutory screening, a plaintiff must allege “some causal nexus between [her]
membership in a protected class” and the adverse employment action). Shank merely
asserts that actions taken against her were discriminatory, but that is insufficient. See
Twombly, 550 U.S. at 555 (requiring plaintiffs to allege facts sufficient to “raise a right
to relief above the speculative level”); see also Martinez, 986 F.3d at 266 (“In an age-
discrimination suit, the legal conclusion that the plaintiff needs to win is that the
employer took the adverse action because of the plaintiff’s age.”).
IV
For the foregoing reasons, the Court will grant Shank leave to proceed in forma
pauperis and dismiss her Complaint without prejudice for failure to comply with Rule 8
of the Federal Rules of Civil Procedure and for failure to state a claim pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii). Shank will be permitted to file an amended complaint if she
can allege facts to cure the deficiencies noted by the Court. Her request for
appointment of counsel will be denied as premature. Tabron v. Grace, 6 F.3d 147, 155
(3d Cir. 1993) (holding that, in determining whether to appoint pro bono counsel, the
Court must first consider, as a threshold matter, whether the plaintiff’s claim has
Case 2:26-cv-05234-GJP Document 9 Filed 10/15/26 Page 15 of 16

16
“some merit in fact and law”). An order containing additional information on
amendment will be entered separately.
BY THE COURT:
/s/ Gerald J. Pappert
Gerald J. Pappert, J.
Case 2:26-cv-05234-GJP Document 9 Filed 10/15/26 Page 16 of 16