BLATT v. CABELA'S RETAIL, INC.
OPINION. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 5/18/17. 5/18/17 ENTERED AND COPIES E-MAILED.(mas, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
KATE LYNN BLATT,
CABELA’S RETAIL, INC.,
Defendant Cabela’s Retail, Inc.’s Partial Motion to Dismiss, ECF No. 13 – Denied
Joseph F. Leeson, Jr.
May 18, 2017
United States District Judge
This action arises under Title VII of the Civil Rights Act of 1964 and the Americans with
Disabilities Act of 1990 (ADA). Presently before the Court is Defendant Cabela’s Retail, Inc.’s
Partial Motion to Dismiss. Cabela’s seeks dismissal of Count III (ADA – Disability
Discrimination, Failure to Accommodate) and Count IV (ADA – Retaliation) of Plaintiff Kate
Lynn Blatt’s Amended Complaint because Blatt has failed to state a claim upon which relief can
be granted. For the reasons set forth below, Cabela’s motion is denied.
The defendant bears the burden of demonstrating that a plaintiff has failed to state a claim
upon which relief can be granted. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005)
(citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)). This Court
must “accept all factual allegations as true, construe the complaint in the light most favorable to
the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff
may be entitled to relief.” See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)
(quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)) (internal quotation
In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court recognized
that “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more
than labels and conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). In Ashcroft v.
Iqbal, 556 U.S. 662 (2009), the Court subsequently laid out a two-part approach to reviewing a
motion to dismiss under Rule 12(b)(6).
First, the Court observed, “the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.” Id. at 678. Thus, “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice” to survive the motion; “instead, ‘a complaint must allege facts suggestive of [the
proscribed] conduct.’” Id.; Phillips, 515 F.3d at 233 (quoting Twombly, 550 U.S. at 563 n.8).
While Rule 8, which requires only “a short and plain statement of the claim showing that the
pleader is entitled to relief,” was “a notable and generous departure from the hyper-technical,
code-pleading regime of a prior era, . . . it does not unlock the doors of discovery for a plaintiff
armed with nothing more than conclusions.” Iqbal, 556 U.S. at 678-79 (“Rule 8 . . . demands
more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” (citing Twombly,
550 U.S. at 555)); see Fed. R. Civ. P. 8(a)(2). For “without some factual allegation in the
complaint, a claimant cannot satisfy the requirement that he or she provide not only ‘fair notice’
but also the ‘grounds’ on which the claim rests.” Phillips, 515 F.3d at 232 (citing Twombly, 550
U.S. at 555 n.3).
Second, the Court emphasized, “only a complaint that states a plausible claim for relief
survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief
. . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience
and common sense.” Iqbal, 556 U.S. at 678. Only if “the ‘[f]actual allegations . . . raise a right to
relief above the speculative level’” has the plaintiff stated a plausible claim. Phillips, 515 F.3d at
234 (quoting Twombly, 550 U.S. at 555). If “the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has alleged—but it has not
‘show[n]’—‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P.
8(a)(2)). “Detailed factual allegations” are not required, id. at 678 (quoting Twombly, 550 U.S. at
555), but a claim must be “nudged . . . across the line from conceivable to plausible,” id. at 680
(quoting Twombly, 550 U.S. at 570).
“The plausibility standard is not akin to a ‘probability requirement,’” but there must be
“more than a sheer possibility that a defendant has acted unlawfully.” Id. at 678 (quoting
Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a
defendant’s liability, it ‘stops short of the line between possibility and plausibility of “entitlement
to relief.”’” Id. (quoting Twombly, 550 U.S. at 557)).
According to the Amended Complaint, in October 2005, Blatt was diagnosed with
“Gender Dysphoria, also known as Gender Identity Disorder,” which substantially limits one or
more of Blatt’s major life activities, including, but not limited to, interacting with others,
reproducing, and social and occupational functioning. Am. Compl. ¶ 10, ECF No. 13. Blatt
alleges that shortly after she was hired by Cabela’s in September 2006, Cabela’s began to
discriminate against her on the basis of her sex and her disability, in violation of Title VII of the
Civil Rights Act and the ADA, and that Cabela’s retaliated against her for opposing this
discrimination, also in violation of these statutes. Id. ¶¶ 11-32. Blatt further alleges that in
February 2007, Cabela’s terminated her employment based on her sex and disability. Id. ¶¶ 3334.
The stated purpose of the ADA is to “provide a clear and comprehensive national
mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C.
§ 12101(b)(1). In pursuit of this purpose, Congress opted to define the scope of the statute’s
coverage by means of a flexible and broad definition of “disability,” namely, “a physical or
mental impairment that substantially limits one or more major life activities of [an] individual.”
Id. § 12102(1)(A). Standing in contrast to this broad definition of disability, there are a few
exceptions to the ADA’s coverage. The provision at issue in this case, 42 U.S.C. § 12211,
excludes from ADA coverage approximately one dozen conditions, including gender identity
Cabela’s contends that § 12211’s reference to gender identity disorders applies to Blatt’s
condition and that the provision therefore excludes her condition from the ADA’s scope. Blatt
responds that, if that is the case, then § 12211’s exclusion of gender identity disorders violates
her equal protection rights.
The constitutional-avoidance canon prescribes that “[w]hen the validity of an act of the
Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a
cardinal principle that [the court] will first ascertain whether a construction of the statute is fairly
possible by which the question may be avoided.” United States v. Witkovich, 353 U.S. 194, 201
(1957) (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)). Thus, if there is a “fairly possible”
interpretation of § 12211 that permits the Court to avoid the constitutional question Blatt has
raised, the Court must adopt that interpretation. As explained below, there is indeed such an
interpretation, namely, one in which the term gender identity disorders is read narrowly to refer
to only the condition of identifying with a different gender, not to encompass (and therefore
exclude from ADA protection) a condition like Blatt’s gender dysphoria, which goes beyond
merely identifying with a different gender and is characterized by clinically significant stress and
other impairments that may be disabling.1
Beginning with the text of the provision, the exceptions listed in § 12211 can be read as
falling into two distinct categories: first, non-disabling conditions that concern sexual orientation
or identity, and second, disabling conditions that are associated with harmful or illegal conduct.2
By contrast, Cabela’s suggested interpretation aligns with the term’s definition in the revised third edition
of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (the current
edition at the time of the drafting of the ADA), where the term gender identity disorders is defined as broadly
encompassing any disorder essentially marked by “an incongruence between assigned sex . . . and gender identity.”
See Diagnostic and Statistical Manual of Mental Disorders 71 (3d ed. revised 1987).
The first category includes homosexuality and bisexuality, see 42 U.S.C. § 12211(a), whereas the second
category includes pedophilia, exhibitionism, voyeurism, compulsive gambling, kleptomania, pyromania, and
“psychoactive substance use disorders resulting from current illegal use of drugs,” see 42 U.S.C. § 12211(b).
The legislative history shows that Congress discussed the § 12211 exclusions in terms of these two distinct
categories. First, there was a concern among some members of Congress that the bill would include “sexual
If the term gender identity disorders were understood, as Cabela’s suggests, to encompass
disabling conditions such as Blatt’s gender dysphoria, then the term would occupy an anomalous
place in the statute, as it would exclude from the ADA conditions that are actually disabling but
that are not associated with harmful or illegal conduct. But under the alternative, narrower
interpretation of the term, this anomaly would be resolved, as the term gender identity disorders
would belong to the first category described above.
This narrower interpretation also comports with the mandate of the Court of Appeals for
the Third Circuit that the ADA, as “a remedial statute, designed to eliminate discrimination
against the disabled in all facets of society, . . . must be broadly construed to effectuate its
purposes.” See Disabled in Action of Pa. v. Se. Pa. Transp. Auth., 539 F.3d 199, 208-09 (3d Cir.
2008) (quoting Kinney v. Yerusalim, 812 F. Supp. 547, 551 (E.D. Pa. 1993)). Thus, any
exceptions to the statute, such as those listed in § 12211, should be read narrowly in order to
permit the statute to achieve a broad reach. See Bonkowski v. Oberg Indus., 787 F.3d 190, 195
(3d Cir. 2015) (“Following traditional canons of statutory interpretation, remedial statutes should
be construed broadly to extend coverage and their exclusions or exceptions should be construed
narrowly.” (quoting Cobb v. Contract Transp., Inc., 452 F.3d 543, 559 (6th Cir. 2006))). This
interpretation is also consistent with the legislative history of § 12211, which reveals that
Congress was careful to distinguish between excluding certain sexual identities from the ADA’s
definition of disability, on one hand, and not excluding disabling conditions that persons of those
identities might have, on the other hand.3
In view of these considerations, it is fairly possible to interpret the term gender identity
disorders narrowly to refer to simply the condition of identifying with a different gender, not to
exclude from ADA coverage disabling conditions that persons who identify with a different
gender may have —such as Blatt’s gender dysphoria, which substantially limits her major life
activities of interacting with others, reproducing, and social and occupational functioning.
Because this interpretation allows the Court to avoid the constitutional questions raised in this
preference as a disability or a protected class of individuals.” See The Americans with Disabilities Act of 1989:
Hearing on H.R. 2273 Before the Subcomms. on Emp’t Opportunities & Select Educ. of the H. Comm. on Educ. &
Labor 101 Cong. 14 (1989) (statement of Rep. Bartlett, Member, H. Comm. on Education and Labor). Second, there
was a separate concern that the ADA “could protect individuals from discrimination on the basis of a variety of
socially unacceptable, often illegal, behavior if such behavior is considered to be the result of a mental illness,”
including such conditions as “compulsive gambling, pedophilia, and kleptomania.” 135 Cong. Rec. S10765-01,
S10796 (daily ed. Sept. 7, 1989) (statement of Sen. Rudman), 1989 WL 183216.
For example, during the Senate debate, in response to inquiries about the proposed bill’s coverage of
homosexuality, HIV, and AIDS, Senator Thomas Harkin, a sponsor of the bill, clarified that although homosexuality
itself would not meet the definition of a disability under the ADA, that would not prevent a person who is gay from
receiving coverage under the statute if the person had a disability. See 135 Cong. Rec. S10765-01, S10767 (daily ed.
Sept. 7, 1989), 1989 WL 183216. Similarly, the House Judiciary Committee commented that “[i]ndividuals who are
homosexual or bisexual and are discriminated against because they have a disability, such as infection with the
Human Immunodeficiency Virus, are protected under the ADA,” and the Committee “specifically rejected
amendments to exclude homosexuals with certain disabilities from coverage.” H.R. Rep. 101-485, at 76 (1990),
reprinted in 1990 U.S.C.C.A.N. 445, 499.
case, it is the Court’s duty to adopt it. Accordingly, Blatt’s condition is not excluded by § 12211
of the ADA, and Cabela’s motion to dismiss Blatt’s ADA claims on this basis is denied.
Cabela’s acknowledges that its motion to dismiss Blatt’s disability discrimination claims
rests on the Court’s interpretation of § 12211. With respect to Blatt’s ADA retaliation claim,
however, Cabela’s contends that even if Blatt has alleged a disability covered by the ADA, she
has nevertheless failed to allege that she engaged in protected activity by opposing disability
discrimination in her workplace. Specifically, Cabela’s contends that “the Amended Complaint
contains allegations that [Blatt] reported conduct that she alleges was discriminatory based on
her sex, not any disability.” Def.’s Mem. Supp. Mot. 10, ECF No. 13-1. Further, Cabela’s
contends that Blatt has failed to allege that she engaged in protected activity by asking for an
accommodation for a disability or that Cabela’s took an adverse employment action against her
because of her alleged request for an accommodation.
Blatt responds that her Amended Complaint fairly alleges that she continually reported to
her superior that she was subject to degrading and discriminatory comments on the basis of her
disability, that she requested a female nametag and uniform and use of the female restroom as
accommodations for her disability, and that as a result of requesting these accommodations she
was subjected to a “pattern of antagonism” prior to her termination. Cabela’s replies that Blatt’s
allegations that she was temporarily forced to wear an inaccurate name tag and was not allowed
to use the female restroom do not amount to a “pattern of antagonism.”
To state an ADA retaliation claim, Blatt must allege that: (1) she engaged in a protected
activity; (2) she experienced an adverse employment action following the protected activity; and
(3) there is a causal link between the protected activity and the adverse employment action. See
Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997). Ordinarily, a causal connection
may be shown by “(1) an unusually suggestive temporal proximity between the protected activity
and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to
establish a causal link.” Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir.
2007). A “pattern of antagonism” is a “consistent and continuous” pattern of conduct, which can
include a “‘constant barrage of written and verbal warnings’” as well as “‘disciplinary action.’”
See Bartos v. MHM Corr. Servs., Inc., 454 F. App’x 74, 79 (3d Cir. 2011) (quoting Robinson v.
Se. Pa. Transp. Auth., 982 F.2d 892, 895 (3d Cir. 1993)).
Here, Blatt has plausibly alleged that she engaged in protected activity by reporting
discrimination and requesting accommodations for her disability. She has also plausibly alleged
that she was subjected to a “pattern of antagonism” as a result of this activity, including Cabela’s
allegedly intentional and repeated refusal to provide her with a correct name tag.
The Court, accepting the allegations of the Amended Complaint as true, as it is required
to do at this stage of the case, denies Cabela’s request to dismiss Count III and Count IV of the
Amended Complaint for the reasons set forth above. The case will be permitted to proceed to
discovery, inter alia, on the facts that may or may not exist to support the claims and defenses set
forth in the pleadings. A separate order follows.
BY THE COURT:
/s/ Joseph F. Leeson, Jr._____________
JOSEPH F. LEESON, JR.
United States District Judge
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