No. 19-2866

 

 

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

 

ZEFERINO MARTINEZ, M.D.,

          Plaintiff-Appellant,

 

v.

 

UPMC SUSQUEHANNA,

          Defendant-Appellee.

 

 

On Appeal from the United States District Court

for the Middle District of Pennsylvania

Hon. Matthew W. Brann

Case No. 4:19-CV-00327

 

 

BRIEF OF THE U.S. EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION AS AMICUS CURIAE IN SUPPORT OF

PLAINTIFF-APPELLANT AND IN FAVOR OF REVERSAL

 

 

SHARON FAST GUSTAFSON

General Counsel

 

JENNIFER S. GOLDSTEIN

Associate General Counsel

 

SYDNEY A.R. FOSTER

Assistant General Counsel

 

 

 

 

JEREMY D. HOROWITZ

Attorney

U.S. EQUAL EMPLOYMENT

   OPPORTUNITY COMMISSION

Office of General Counsel

131 M St., NE, Fifth Floor

Washington, D.C.  20507

(202) 663-4716

jeremy.horowitz@eeoc.gov

TABLE OF CONTENTS

TABLE OF AUTHORITIES. ii

STATEMENT OF INTEREST. 1

STATEMENT OF THE ISSUE. 1

STATEMENT OF THE CASE. 2

ARGUMENT. 4

Martinez’s FAC Sufficiently Alleged Claims of Age Discrimination Under the ADEA. 4

A.     The relevant pleading standard under Swierkiewicz, Twombly, and Iqbal only requires alleging facts that make out a facially plausible claim for relief, providing the defendant fair notice of the claim and its factual basis. 4

B.     Martinez’s FAC sufficiently stated a claim under the Federal Rules of Civil Procedure and applicable precedents from the Supreme Court and this Court. 9

CONCLUSION.. 27

CERTIFICATE OF COMPLIANCE. 28

CERTIFICATE OF SERVICE

 

TABLE OF AUTHORITIES

     Page(s)

Cases

ALA, Inc. v. CCAIR, Inc.,
29 F.3d 855 (3d Cir. 1994).............................................. 23

Ashcroft v. Iqbal,
556 U.S. 662 (2009)................................................. passim

Barber v. CSX Dist. Servs.,
68 F.3d 694 (3d Cir. 1995).............................................. 11

Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007)................................................. passim

Bienkowski v. Am. Airlines, Inc.,
851 F.2d 1503 (5th Cir. 1988)......................................... 17

United States ex rel. Bookwalter v. UPMC,
946 F.3d 162 (3d Cir. 2019)............................................ 22

Burrage v. United States,
571 U.S. 204 (2014)........................................................ 22

Burton v. Teleflex Inc.,
707 F.3d 417 (3d Cir. 2013)...................................... 11, 17

Castleberry v. STI Grp.,
863 F.3d 259 (3d Cir. 2017)........................................ 9, 10

Cauler v. Lehigh Valley Hosp., Inc.,
654 F. App’x 69 (3d Cir. 2016)................................. 24, 25

Cauler v. Lehigh Valley Hosp., Inc.,
No. 15-CV-01082, 2015 WL 2337311 (E.D. Pa. May 14, 2015)......................................................................... 23, 24

Conley v. Gibson,
355 U.S. 41 (1957)........................................................ 5, 7

Connelly v. Lane Constr. Corp.,
809 F.3d 780 (3d Cir. 2016)..................................... passim

Erickson v. Pardus,
551 U.S. 89 (2007) (per curiam)................................ 18, 20

Evans v. Pa. Power & Light Co.,
98 F. App’x 151 (3d Cir. 2004)....................................... 11

Fowler v. UPMC Shadyside,
578 F.3d 203 (3d Cir. 2009)..................................... passim

Gross v. FBL Fin. Servs., Inc.,
557 U.S. 167 (2009)........................................................ 10

Haskett v. T.S. Dudley Land Co.,
648 F. App’x 492 (5th Cir. 2016).................................... 26

In re Ins. Brokerage Antitrust Litig.,
618 F.3d 300 (3d Cir. 2010).............................................. 8

Jones v. Sch. Dist. of Phila.,
198 F.3d 403 (3d Cir. 1999)............................................ 10

Martinez v. IBEW – Local No. 98,
352 F. App’x 737 (3d Cir. 2009)..................................... 11

McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973)............................................. 5, 8, 9, 10

Miller v. CIGNA Corp.,
47 F.3d 586 (3d Cir. 1995) (en banc)............................... 22

O’Connor v. Consol. Coin Caterers Corp.,
517 U.S. 308 (1996).................................................. 12, 16

Palakovic v. Wetzel,
854 F.3d 209 (3d Cir. 2017)........................................ 4, 17

Phillips v. County of Allegheny,
515 F.3d 224 (3d Cir. 2008).............................................. 8

Ray v. Amelia Cty. Sheriff’s Office,
302 F. App’x 209 (4th Cir. 2008).............................. 25, 26

Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133 (2000).......................................................... 5

Robinson v. City of Philadelphia,
491 F. App’x 295 (3d Cir. 2012)..................................... 22

Sarullo v. U.S. Postal Serv.,
352 F.3d 789 (3d Cir. 2003)...................................... 10, 16

Schuchardt v. President of the U.S.,
839 F.3d 336 (3d Cir. 2016)............................................ 18

Sempier v. Johnson & Higgins,
45 F.3d 724 (3d Cir. 1995)................................... 17, 19, 24

Shakur v. Furey,
No. 3:08-cv-1187, 2010 WL 1416836 (D. Conn. Apr. 8, 2010)............................................................................... 19

Sheppard v. David Evans & Assocs.,
694 F.3d 1045 (9th Cir. 2012)......................................... 25

Sweda v. Univ. of Pa.,
923 F.3d 320 (3d Cir. 2019).............................................. 9

Swierkiewicz v. Sorema N.A.,
534 U.S. 506 (2002)................................................. passim

Torre v. Casio, Inc.,
42 F.3d 825 (3d Cir. 1994).............................................. 19

Wilkerson v. New Media Tech. Charter Sch. Inc.,
522 F.3d 315 (3d Cir. 2008).............................................. 8

Willis v. UPMC Children’s Hosp. of Pittsburgh,
808 F.3d 638 (3d Cir. 2015)............................................ 11

Wooten v. McDonald Transit Assocs., Inc.,
788 F.3d 490 (5th Cir. 2015)........................................... 27

Statutes

Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq.................................................................. passim

29 U.S.C. § 623(a)(1)...................................................... 10

29 U.S.C. § 631(a)........................................................... 10

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq............................................................................. 5, 8

29 U.S.C. § 794.............................................................. 20, 21

Rules

Fed. R. App. P. 29(a).............................................................. 1

Fed. R. Civ. P. 8(a)(2)................................................... passim

Fed. R. Civ. P. 12(b)(6).............................................. 5, 22, 26

Fed. R. Civ. P. 50................................................................. 22

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission (“EEOC” or “Commission”) is the primary agency charged by Congress with administering and enforcing federal laws prohibiting workplace discrimination, including the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621 et seq.  This appeal concerns the proper pleading standard for claims under the ADEA, an issue of central importance to the EEOC.  The district court dismissed the plaintiff’s claims of age discrimination because it found that his complaint’s qualitative references to “substantially younger” comparators did not amount to factual allegations.  In so doing, the court incorrectly imposed a heightened pleading standard on the plaintiff, in excess of the requirements established in Federal Rule of Civil Procedure 8(a)(2).  Because the EEOC has a strong interest in the proper application of pleading standards to ADEA claims, it offers its views to the Court.  See Fed. R. App. P. 29(a).  

STATEMENT OF THE ISSUE[1]

The plaintiff’s complaint alleged that he was a highly experienced and credentialed seventy-year-old who was terminated from his position as an orthopedic surgeon for reasons unrelated to his performance and replaced by a significantly younger, less qualified, less experienced individual.  When he later applied for the same job, the defendant did not respond to his three applications and instead hired a significantly younger, less qualified, less experienced individual.  Did the district court err in concluding that this complaint failed to state a plausible claim of age discrimination under the ADEA?

STATEMENT OF THE CASE

Plaintiff Zeferino Martinez filed his first amended complaint (“FAC”) against Defendant UPMC Susquehanna (“UPMC”) alleging that his termination, and UPMC’s subsequent failure to hire him, violated the ADEA and state law.  II.App.56-60.[2]  The FAC alleged that Martinez is “a seventy (70) year old citizen” and “a highly educated and experienced physician” who obtained his medical degree in 1973 and completed a surgical residency in 1977, an orthopedic surgery residence in 1981, and a spine fellowship in 1982.  II.App.55-56.  He received Board Certification as an Orthopedic Surgeon in 1986.  II.App.56.

The FAC explained that Martinez began working under a three-year contract with UPMC’s predecessor in December 2016 as its sole Orthopedic Surgeon.  II.App.57.  UPMC acquired its predecessor in October 2017.  II.App.57.  Although UPMC initially told Martinez his contract would continue, its representatives “abruptly terminated” his employment a month after the acquisition, telling him it was because UPMC was “moving in a different direction” and his “services were no longer needed,” but assuring him that the termination “had nothing to do with [his] performance.”  II.App.57-58.  The FAC alleged that UPMC then hired John Hunter, “a significantly younger, less qualified, less experienced individual as Plaintiff Martinez’s replacement.”  II.App.58.

According to the FAC, UPMC later posted a job opening for the position of “Orthopedic Surgery, Orthopedics.”  II.App.58.  Martinez applied for the position three separate times but never received a response.  II.App.58.  Instead, UPMC hired Wingrove Jarvis, “a significantly younger, less experienced, less qualified individual for the position.”  II.App.59.

The district court granted UPMC’s motion to dismiss the FAC.  The court began its analysis by stating that Martinez’s ADEA claims required him to allege “(1) [that] he is forty years of age or older; (2) that UPMC Susquehanna took an adverse employment action against him; (3) that he was qualified for the position in question; and (4) that he was ultimately replaced by another employee ‘who was sufficiently younger to support an inference of discriminatory animus.’”  I.App.6 (quoting Smith v. City of Allentown, 589 F.3d 684, 689 (3d Cir. 2009)).  It then concluded that dismissal of the amended complaint was warranted because the FAC “offered no facts from which the Court may infer that [Martinez] was terminated and later not hired based on age discrimination.”  I.App.7.  The court noted that the FAC did not affirmatively state Hunter’s and Jarvis’s specialties or provide their ages, alleging only that they were “substantially younger,” which the court characterized as a legal conclusion rather than a factual allegation.  I.App.7.

ARGUMENT

Martinez’s FAC Sufficiently Alleged Claims of Age Discrimination

Under the ADEA.

Under Federal Rule of Civil Procedure 8(a)(2) and cases from the Supreme Court and this Court interpreting that rule, the FAC sufficiently alleged claims of wrongful termination and refusal to hire under the ADEA.  The district court therefore erred in granting UPMC’s motion to dismiss.

A.        The relevant pleading standard under Swierkiewicz, Twombly, and Iqbal only requires alleging facts that make out a facially plausible claim for relief, providing the defendant fair notice of the claim and its factual basis.

Federal Rule of Civil Procedure 8(a)(2) specifies that a civil complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”  Fed. R. Civ. P. 8(a)(2).  Such a statement “give[s] the defendant fair notice of what the . . . claim is and the grounds upon which it rests.”  Palakovic v. Wetzel, 854 F.3d 209, 219 (3d Cir. 2017) (second alteration in original) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).  A defendant contending that a complaint has not met this requirement may seek dismissal for “failure to state a claim upon which relief can be granted.”  Fed. R. Civ. P. 12(b)(6).  Interpreting the interplay of these two provisions, the Supreme Court held in Conley v. Gibson, 355 U.S. 41 (1957), that “[a] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”  Id. at 45-46.

The Supreme Court later addressed these principles in the context of employment-discrimination claims under the ADEA and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., holding that the “short and plain statement” rule did not require plaintiffs to allege specific facts making out a prima facie case of discrimination under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).[3]  Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-12 (2002).  In reaching this conclusion, the Court noted, inter alia, that “the precise requirements of a prima facie case can vary depending on the context.”  Id. at 512.  The Court also observed that employment-discrimination cases do not need to meet a heightened pleading standard beyond what Rule 8(a)(2) requires.  Id. at 512-15.

The Supreme Court subsequently revisited its interpretation of Rule 8(a)(2) in Twombly and Ashcroft v. Iqbal, 556 U.S. 662 (2009).  In these cases, the Court “retired” Conley’s rule that courts could grant a motion to dismiss for failure to state a claim only if it was beyond doubt the plaintiff could prove “no set of facts” that would entitle him to relief.  Twombly, 550 U.S. at 561-63; Iqbal, 556 U.S. at 670.  Instead, the Court explained that to survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”  Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).  Such plausibility exists if the facts alleged in the complaint allow for “the reasonable inference that the defendant is liable for the misconduct alleged.”  Id.; see Twombly, 550 U.S. at 556. 

To meet this plausibility standard, the complaint’s factual allegations must “raise a right to relief above the speculative level.”  Twombly, 550 U.S. at 555.  But “[a]sking for plausible grounds to infer [unlawful activity] does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of [such activity].”  Id. at 556.  The facts alleged need not be “detailed,” but a complaint must provide more than mere “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,” or “naked assertion[s]” without “further factual enhancement[s].”  Iqbal, 556 U.S. at 678 (first alteration in original); Twombly, 550 U.S. at 555.  The Court explained that making this plausibility determination is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.”  Iqbal, 556 U.S. at 679.

The Court noted that the plaintiff was not required to show he was likely to prove his case: “[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.”  Twombly, 550 U.S. at 556.  The touchstone, both before and after Twombly and Iqbal, is whether the complaint “‘give[s] the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’”  Id. at 555 (second alteration in original) (quoting Conley, 355 U.S. at 47); id. at 565 n.10 (differentiating between an acceptable complaint with enough factual information that the defendant “would know what to answer” from an impermissible conclusory complaint affording the defendant “little idea where to begin”).

Importantly, these cases left the core holding of Swierkiewicz intact.[4]  In Twombly, the Court emphasized that its holding was consistent with Swierkiewicz’s conclusion that Title VII complaints did not need to meet a heightened pleading standard or set forth facts establishing a prima facie case of discrimination under McDonnell Douglas.  Twombly, 550 U.S. at 569-70 & n.14.  Elsewhere, it cited Swierkiewicz favorably in explaining the applicable dismissal standard.  Id. at 555-56, 563.  Swierkiewicz’s partial reliance on Conley’s “no set of facts” formulation did not survive Twombly, but the Court called no other aspect of Swierkiewicz’s analysis into question.  Iqbal did not cite Swierkiewicz, either positively or negatively.

Applying these cases, this Court has emphasized certain principles.  The Court has reaffirmed that Rule 8(a)(2) still requires only a “short and plain statement” of entitlement to relief, rather than detailed factual allegations, in order to provide the defendant fair notice of the claim and the factual basis on which it rests.  See Connelly v. Lane Constr. Corp., 809 F.3d 780, 786 (3d Cir. 2016); Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008).  In making this assessment, “[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.”  Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 318 (3d Cir. 2008) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

To conduct this analysis, a court should (1) identify the elements of the claim; (2) identify allegations that are conclusions and therefore not entitled to the assumption of truth; and (3) taking the other factual allegations as true, determine whether “they plausibly give rise to an entitlement to relief.”  Connelly, 809 F.3d at 787 (quoting Iqbal, 556 U.S. at 679); see Sweda v. Univ. of Pa., 923 F.3d 320, 326 & n.2 (3d Cir. 2019).^[5]  Although the plaintiff in an employment-discrimination case need not establish a prima facie case under McDonnell Douglas, see Connelly, 809 F.3d at 788-89; Fowler v. UPMC Shadyside, 578 F.3d 203, 210-13 (3d Cir. 2009), if the allegations do make out a prima facie case of employment discrimination, the complaint “necessarily survives a motion to dismiss.”  Castleberry v. STI Grp., 863 F.3d 259, 266 (3d Cir. 2017). 

B.         Martinez’s FAC sufficiently stated a claim under the Federal Rules of Civil Procedure and applicable precedents from the Supreme Court and this Court.

As this Court explained in Connelly, the first analytical step in determining whether a complaint meets the Rule 8(a)(2) standard is to identify the elements of the claim at issue.  Connelly, 809 F.3d at 787.  The ADEA applies to “individuals who are at least 40 years of age.”  29 U.S.C. § 631(a).  As to those individuals, the statute generally forbids private employers from, inter alia, refusing to hire or discharging any individual “because of such individual’s age.”  29 U.S.C. § 623(a)(1).  ADEA plaintiffs must show that age was a “but-for” cause of such an employer’s adverse action against them.  Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009); cf. id. at 178 n.4 (“There is no heightened evidentiary requirement for ADEA plaintiffs to satisfy their burden of persuasion that age was the ‘but-for’ cause of their employer’s adverse action, and we will imply none.”).

As noted above, although an employment-discrimination complaint need not allege all elements of a prima facie case under McDonnell Douglas, 411 U.S. at 802, see Swierkiewicz, 534 U.S. at 510-12, a complaint that does so “necessarily survives a motion to dismiss,” Castleberry, 863 F.3d at 266.  This Court has repeatedly held that “the elements of a prima facie case depend on the facts of the particular case.  Thus, a prima facie case cannot be established on a one-size-fits-all basis.”  Jones v. Sch. Dist. of Phila., 198 F.3d 403, 411 (3d Cir. 1999) (citations omitted).  In general, however, a prima facie case requires showing (1) the plaintiff belongs to a protected class; (2) s/he was qualified for the position; (3) s/he was subject to an adverse employment action; and (4) the circumstances of the adverse action give rise to an inference of discrimination.  Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797-98 (3d Cir. 2003); Martinez v. IBEW – Local No. 98, 352 F. App’x 737, 740 (3d Cir. 2009). 

One way an ADEA plaintiff alleging discriminatory termination may show circumstances giving rise to an inference of discrimination — thereby establishing the final prong of the prima facie case — is to show that “he was ultimately replaced by another employee who was sufficiently younger to support an inference of discriminatory animus.”  Burton v. Teleflex Inc., 707 F.3d 417, 426 (3d Cir. 2013).  Even if not directly replaced, the plaintiff may still satisfy the fourth element so long as he “can provide facts which ‘if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.’”  Willis v. UPMC Children’s Hosp. of Pittsburgh, 808 F.3d 638, 644 (3d Cir. 2015) (quoting Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 352 (3d Cir. 1999)); see also Evans v. Pa. Power & Light Co., 98 F. App’x 151, 154 (3d Cir. 2004) (noting that a plaintiff can satisfy the fourth prong under this Court’s “flexible approach” by showing “the employer had a continued need for someone to perform the same work after the complainant left” (citation omitted)).  In the failure-to-hire context, the plaintiff may make out that final prima facie element by showing that “the employer either ultimately filled the position with someone sufficiently younger to permit an inference of age discrimination or continued to seek applicants from among those having plaintiff’s qualifications.”  Barber v. CSX Dist. Servs., 68 F.3d 694, 698 (3d Cir. 1995) (quoting Fowle v. C & C Cola, 868 F.2d 59, 61 (3d Cir. 1989)).

When a plaintiff relies on the age difference between himself and the person eventually hired for a position to establish the fourth element of the prima facie case, he need not show that the other person was under forty (and thus outside the protected class).  O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312 (1996).  Instead, the Supreme Court has suggested that the fact that a replacement is “substantially younger” than the plaintiff could establish the fourth prima facie element, even if the replacement were forty or older, whereas an “insignificant[]” age difference would not, on its own, be sufficient.  Id. at 313.  At bottom, the inquiry is whether there is “evidence adequate to create an inference that an employment decision was based on a[n] [illegal] discriminatory criterion.”  Id. at 312 (citation and emphasis omitted).

In the next step of the evaluation of a complaint’s sufficiency, a court must separate out allegations that are legal conclusions and, focusing on the remaining factual allegations, determine whether they state a plausible claim for relief.  Connelly, 809 F.3d at 787.  In district court, UPMC did not challenge the sufficiency of the FAC regarding the first three elements of the prima facie case (Martinez’s age, qualifications, and an adverse employment action), and the district court did not indicate the FAC was deficient regarding any of these elements.  Thus, only the fourth element — circumstances plausibly giving rise to a claim of discrimination, such as replacement by a sufficiently younger individual — is at issue. 

The FAC’s allegations plausibly allow for the reasonable inference that UPMC terminated Martinez and refused to rehire him — and instead hired significantly younger doctors to fill his position — because of his age.  See Twombly, 550 U.S. at 556; Iqbal, 556 U.S. at 678.  The FAC does not simply recite the pertinent element of an ADEA claim (an employment action based on the plaintiff’s age).  Instead, it sets out the “further factual enhancement” necessary to establish the plausibility of Martinez’s entitlement to relief.  Twombly, 550 U.S. at 557. 

Specifically, Martinez’s FAC alleged that he was seventy years old and detailed his numerous credentials and extensive experience in academia and provider-based medicine amassed over more than forty years of practice.  II.App.55-57.  The FAC alleged that Martinez was the sole orthopedic surgeon for UPMC and its predecessor, and that he was initially told his employment would continue after UPMC acquired its predecessor.  II.App.57-58.  A month after the acquisition, however, UPMC abruptly terminated him.  II.App.58.  UPMC vaguely claimed that it terminated Martinez because it was “moving in a different direction” and assured Martinez that the termination “had nothing to do with his performance.”  II.App.58.  Martinez alleged that UPMC hired John Hunter, “a significantly younger, less qualified, less experienced individual,” as his replacement.  II.App.58.  Martinez also alleged that UPMC later posted a job opening for an orthopedic surgeon, that he applied for that position three separate times, and that he was qualified for the position based on his decades of training and prior work experience, including his performance of the same job for UPMC, but that UPMC did not respond to his applications and instead hired Wingrove Jarvis, “a significantly younger, less experienced, less qualified individual.”  II.App.58-59.  

In short, the complaint alleged that Martinez was seventy years old and performed his job satisfactorily, but UPMC nevertheless terminated him for non-performance reasons and gave his job to a less qualified, less experienced, significantly younger person (whom he identified by name).  When Martinez later applied for the same job, for which he was qualified, UPMC did not hire him and instead hired a less qualified, less experienced, significantly younger person (whom, again, Martinez named).  These allegations satisfied Rule 8(a)(2): they were sufficient to give UPMC “fair notice of what the . . . claim is and the grounds upon which it rests,” the animating purpose behind the rule.  Twombly, 550 U.S. at 555 (alteration in original) (citation omitted); see Fowler, 578 F.3d at 212 (vacating dismissal because the complaint’s allegations were “sufficient to give UPMC notice of the basis for [the plaintiff’s] claim,” setting out “how, when, and where UPMC allegedly discriminated against” her).  At the dismissal stage of litigation, nothing more is required.  Fowler, 578 F.3d at 211-12.

Unlike Twombly and Iqbal, this is not a case in which an “obvious alternative explanation” that is more plausible than the plaintiff’s claim is inferable from the pleadings.  Iqbal, 556 U.S. at 682; Twombly, 550 U.S. at 567.  In Twombly, the Supreme Court held that the defendants’ alleged actions were more plausibly attributable to “routine market conduct” than to the antitrust conspiracy the plaintiffs alleged.  Twombly, 550 U.S. at 566-69 (“[T]here is no reason to infer that the companies had agreed among themselves to do what was only natural anyway.”).  Iqbal involved a challenge to the Attorney General and FBI Director’s policy of detaining aliens “who were illegally present in the United States and who had potential connections to those who committed terrorist acts” on 9/11.  Iqbal, 556 U.S. at 682.  Rather than crediting the plaintiff’s allegation that the policy stemmed from an intent to discriminate against Arabs or Muslims, the Court explained that “a disparate, incidental impact on Arab Muslims” was the natural result of a “legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks.”  Id.  Given this “obvious alternative explanation,” the Court concluded that the allegation of discriminatory intent was not “plausible.”  Id.  Here, by contrast, the allegations — that UPMC told Martinez it terminated him because it was “moving in a different direction” and not for performance-based reasons; and that UPMC hired significantly younger, less qualified, less experienced employees to perform his job, II.App.58-59 — do not give rise to an obviously more plausible, non-discriminatory counter-explanation.

Addressing the fourth element of the prima facie case, the district court concluded that Martinez “offered no facts from which the Court may infer that he was terminated and later not hired based on age discrimination.”  I.App.7.  But this is incorrect.  The FAC alleged that UPMC told Martinez he was terminated for non-performance reasons, and it also alleged that significantly younger, less qualified, less experienced individuals were hired instead.  II.App.58-59.  These allegations, together with the vague reason UPMC gave Martinez for his termination (that it was “moving in a different direction”), II.App.58, unquestionably constitute facts giving rise to an inference of age discrimination, see Sarullo, 352 F.3d at 797-98, and are sufficient to provide UPMC fair notice of the basis for the claims.  Indeed, the allegations in the FAC that Martinez was replaced by “significantly younger” individuals are enough, standing on their own, to establish the fourth element of the prima facie case under governing decisions of the Supreme Court and this Court.  See O’Connor, 517 U.S. at 313 (suggesting that the fourth element is satisfied when the replacement is “substantially younger” than the plaintiff); Burton, 707 F.3d at 426 (holding that the fourth element is satisfied when the replacement is “sufficiently younger to support an inference of discriminatory animus”).

The district court determined that the FAC’s allegations that the two comparators were “substantially younger” were “legal conclusion[s]” rather than “factual allegation[s].”  I.App.7.  Again, this is legal error.  Reference to a “significantly younger” comparator is a description of an underlying fact (the scope of the pertinent age differences), one putting UPMC on notice of the nature of Martinez’s claims.^[6]  That is enough under Rule 8(a)(2).  See Twombly, 550 U.S. at 555; Palakovic, 854 F.3d at 219.  Although the district court may have preferred more specific facts — for example, Hunter’s and Jarvis’s precise ages — that preference does not render the actual facts alleged somehow invalid or conclusory.^[7]  See Fowler, 578 F.3d at 211-12 (“Although Fowler’s complaint is not as rich with detail as some might prefer, it need only set forth sufficient facts to support plausible claims.”).  Indeed, the Supreme Court has clearly explained that “specific facts are not necessary” to survive a motion to dismiss where, as here, the defendant has fair notice of the basis for the plaintiff’s claim.  Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam); see Iqbal, 556 U.S. at 678 (“detailed factual allegations” are not required (citation omitted)); Twombly, 550 U.S. at 555 (same); see also Schuchardt v. President of the U.S., 839 F.3d 336, 347 (3d Cir. 2016) (“[A]lthough Twombly and Iqbal emphasized the plaintiff’s burden of pleading sufficient ‘factual matter,’ the Supreme Court also expressly ‘disavow[ed]’ the requirement that a plaintiff plead ‘specific facts.’  Implicit in the notion that a plaintiff need not plead ‘specific facts’ to survive a motion to dismiss is that courts cannot inject evidentiary issues into the plausibility determination.” (citation omitted)).

The district court also criticized the FAC for not alleging Hunter’s or Jarvis’s specialties.  I.App.7.  But the FAC alleges that UPMC hired Jarvis for the Orthopedic Surgery position Martinez sought, II.App.58-59, indicating (at least implicitly) that Jarvis, like Martinez, was an orthopedic surgeon.  As to Hunter, the district court noted UPMC’s argument that he was “a podiatrist, who is not an appropriate comparator,” but did not directly rule on the issue.  I.App.6.  Assuming UPMC raises this argument again on appeal, this Court should reject it; Hunter’s licensure as a Doctor of Podiatric Medicine is irrelevant at the dismissal stage.  Even if Martinez’s orthopedic surgeon position did not fully overlap with the position Hunter filled, that does not mean Hunter cannot be considered Martinez’s replacement for purposes of ADEA analysis.  Instead, the governing case law establishes that if a significantly younger person took on a subset of Martinez’s responsibilities following his termination, that would be enough to satisfy the fourth element of the prima facie case.  See, e.g., Sempier v. Johnson & Higgins, 45 F.3d 724, 729-30 (3d Cir. 1995) (holding the fourth prima facie element was satisfied by initial and final replacements who were fourteen and four years younger than the plaintiff, respectively, even though the replacements took over only some of the plaintiff’s duties); Torre v. Casio, Inc., 42 F.3d 825, 830-31 (3d Cir. 1994) (holding that a plaintiff established the fourth element of the prima facie case by demonstrating, inter alia, that his responsibilities were transferred to significantly younger employees).  Martinez’s complaint specifically characterized Hunter as a “replacement,” II.App.58, and it is plausible that the duties performed by an orthopedic surgeon and podiatrist could overlap.  Cf., e.g., Shakur v. Furey, No. 3:08-cv-1187, 2010 WL 1416836, at *5 (D. Conn. Apr. 8, 2010) (rejecting the plaintiff’s contention that examination by a podiatrist rather than an orthopedist constituted deliberate indifference to a serious medical need because the podiatrist could perform the relevant functions).  Further specificity at the pleading stage was unnecessary, as Martinez has “raise[d] a reasonable expectation that discovery” — here, discovery concerning Martinez’s responsibilities, Hunter’s job duties and capabilities, and the tasks Hunter assumed in Martinez’s absence — “will uncover proof of h[is] claims.”  Connelly, 809 F.3d at 789; see also Fowler, 578 F.3d at 213.

The Supreme Court and this Court have found similar or even less specific allegations than those in the FAC were sufficient to survive dismissal.  For example, in Erickson, the plaintiff’s complaint alleged that a prison had halted what was meant to be a year-long treatment for his hepatitis C, that he was “still in need of treatment,” and that the prison’s decision “endanger[ed] [his] life.”  551 U.S. at 91, 94 (second alteration in original) (citation omitted).  The Supreme Court held that these statements, alone, sufficiently alleged that the defendants caused the plaintiff “substantial harm,” explaining that the Tenth Circuit’s holding that the plaintiff’s allegations were excessively conclusory “depart[ed]” from the governing pleading standard in a “stark . . . manner.”  Id. at 90, 94. 

In Fowler, the plaintiff’s complaint alleged that after she was injured at work, her employer, UPMC, refused to transfer her to other positions on the basis of disability, in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 794.  Fowler, 578 F.3d at 212.  This Court held that because the complaint set out “how, when, and where UPMC allegedly discriminated against Fowler,” the allegations were “sufficient to give UPMC notice of the basis for Fowler’s claim.”  Id.  The key allegations in the complaint upon which the court relied — that the plaintiff had been released by her doctor to perform sedentary work after her injury; that UPMC never contacted her regarding various open positions, one of which she applied for; and that UPMC failed to transfer her to another position, id. — are far less detailed than the allegations in Martinez’s complaint, particularly on the issue whether the employer acted with discriminatory intent.  UPMC also argued that the allegation in Fowler’s complaint that she could perform only “sedentary work” was insufficient to show that she was “substantially limited in a . . . major life activity” — at the time, a necessary precondition for relief under the Rehabilitation Act.  Id. at 213-14.  This Court rejected this argument, explaining that because Fowler had identified an impairment of which UPMC was aware, she had no additional obligation “to go into particulars about the life activity affected by her alleged disability or detail the nature of her substantial limitations” at the dismissal stage.  Id. at 213.

More broadly, the district court in this case erred to the extent it faulted Martinez for failing to “establish” the fourth prong of the prima facie case.^[8]  I.App.7.  The law is clear that “a plaintiff is not required to establish the elements of a prima facie case”; instead, he “need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element.”  Fowler, 578 F.3d at 213 (emphasis added) (citation omitted).  The allegations only have to show that age discrimination was plausible, not probable.  Twombly, 550 U.S. at 556; United States ex rel. Bookwalter v. UPMC, 946 F.3d 162, 168 (3d Cir. 2019).  Requiring a plaintiff to “establish” aspects of the prima facie case at the dismissal stage constitutes error.  See Fowler, 578 F.3d at 213 (explaining that “[i]t is axiomatic that the standards for dismissing claims under [Federal Rule of Civil Procedure] 12(b)(6) and granting judgment under [Federal Rules of Civil Procedure 50 or 56] are vastly different” and faulting the district court evaluating the defendant’s Rule 12(b)(6) motion for focusing on what the plaintiff could “prove” rather than what she “pleaded”); Connelly, 809 F.3d at 789 (“[A]t this early stage of the proceedings, it is enough for [the plaintiff] to allege sufficient facts to raise a reasonable expectation that discovery will uncover proof of her claims.”); see generally ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 863 & n.17 (3d Cir. 1994) (noting that “a motion for summary judgment is different in critical respects from a motion to dismiss for failure to state a claim,” and suggesting that while some speculation about the ultimate evidence available is permissible at the dismissal stage, the same is not true at summary judgment, after the parties have had the opportunity to procure the necessary evidence in discovery).

The district court cited an unpublished district court decision, Cauler v. Lehigh Valley Hospital, Inc., No. 15-CV-01082, 2015 WL 2337311, at *2 (E.D. Pa. May 14, 2015), aff’d, 654 F. App’x 69 (3d Cir. 2016), in support of its conclusion that Martinez’s references to two specific “significantly younger” individuals were insufficient under Rule 8(a)(2).  I.App.7 & n.33.  In that case, the plaintiff alleged that the job she applied for went to a “substantially younger” person instead.  The Cauler district court held that the allegation was “a legal conclusion, not a factual allegation,” and was “not enough to show an inference of discrimination.”  2015 WL 2337311, at *2.

Cauler is not persuasive authority.  The case is factually distinct, as the complaint in Cauler did not identify the “substantially younger” employee who ultimately got the position the plaintiff sought, did not make any allegations about that person’s qualifications, and did not explain why that person could be considered a comparator to the plaintiff.  Id.  Martinez’s FAC contained each of these elements. 

In addition, the district court in Cauler did not cite any relevant authority in support of its determination that the complaint’s reference to a “substantially younger” person was a legal conclusion rather than a factual allegation.  Instead, the court — and the district court here, I.App.7 & n.34 — cited this Court’s decision in Sempier.  But Sempier merely evaluated whether a plaintiff who sought to establish the fourth element of the prima facie case by showing he was replaced by a “sufficiently younger person to create an inference of age discrimination” had set forth enough evidence to survive summary judgment following discovery.  45 F.3d at 728.  On the facts of that case, Sempier held that the age difference in question (four years with respect to one replacement and over ten years with respect to another) was large enough to establish the final element of the prima facie case, which Sempier emphasized “is not intended to be onerous.”  Id. at 728-30.  Because Sempier was decided at summary judgment, it said nothing about whether a complaint must quantify an age difference to survive a motion to dismiss.  As explained above on pages 17-18, such quantification is not necessary where, as here, a complaint describes the age difference qualitatively.  This Court’s unpublished decision affirming the district court’s decision in Cauler, see Cauler, 654 F. App’x at 72, is distinguishable and should not be considered persuasive for the same reasons.  The decision cited no legal authority in support of its erroneous conclusion that alleging that a “‘substantially younger’ person” got the job for which the plaintiff applied was a “bare contention” and a “legal conclusion,” rather than a “factual allegation.”  Id.

In the ADEA context, other circuits have found allegations similar to those in the FAC sufficient to survive a motion to dismiss.  For example, Sheppard v. David Evans & Associates, 694 F.3d 1045 (9th Cir. 2012), involved a complaint alleging that (1) the plaintiff was “over the age of forty”; (2) “her performance was satisfactory or better” and “[s]he received consistently good performance reviews”; (3) she “was involuntarily terminated from her position”; and (4) “[a]t the time of her termination there were five comparators,” and these “younger comparators kept their jobs.”  Id. at 1048 (quoting the plaintiff’s complaint).  The Ninth Circuit held that the complaint was sufficient to survive a motion to dismiss and vacated the district court’s dismissal.  Id. at 1050 (“Although Sheppard’s complaint is brief, her allegations are sufficient to state a prima facie case of discrimination.”).  Similarly, in Ray v. Amelia County Sheriff’s Office, 302 F. App’x 209 (4th Cir. 2008), the plaintiff alleged that “she is a member of a protected class (she is forty-five years old), she suffered an adverse employment action (her employment was terminated), and she was replaced by a substantially younger employee who is less qualified for the position than Ray.”  Id. at 211.  She also alleged “possible reasons for the termination” that may have related to her age, including a desire to have younger-looking people in the front office, a preference for someone less knowledgeable about official policies and procedures, and opposition to her use of accrued annual leave.  Id. at 211-12.  The Fourth Circuit held that the district court erred in dismissing the claim: “Taken together, these allegations provide the defendants with fair notice of the nature of her claim and the grounds upon which it rests, and state a claim to relief that is plausible, not merely speculative.”  Id. at 212.

The Fifth Circuit likewise reversed dismissal of an ADEA claim when the plaintiff alleged “(1) he belongs to a protected class; (2) he applied for and was qualified for a position that was seeking applicants; (3) he was rejected; and (4) following his rejection, another applicant not of the protected class was hired.”  Haskett v. T.S. Dudley Land Co., 648 F. App’x 492, 495-96 (5th Cir. 2016) (citation omitted).  The court held that the dismissal was erroneous because the complaint “gave [the employer] ‘fair notice’ of his age discrimination claim, and therefore met Rule 12(b)(6)’s factual sufficiency requirement.”  Id. (noting that the allegations were, if anything, “more factually detailed” than a “bare-bones” complaint the court deemed sufficient in another ADEA case, which “alleg[ed] only that the complainant had worked for a company, that he filed an age discrimination charge against the company, and that the company constructively discharged him in response, causing him harm” (discussing Wooten v. McDonald Transit Assocs., Inc., 788 F.3d 490, 498-99 (5th Cir. 2015)); see also Wooten, 788 F.3d at 498-99 (holding that these allegations were “a far cry from the sort of ‘unadorned, the-defendant-unlawfully-harmed-me accusation’ decried in Iqbal” and therefore “sufficient to satisfy the low threshold of Rule 8”).

CONCLUSION

For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings.

Respectfully submitted,

 

SHARON FAST GUSTAFSON

General Counsel

 

JENNIFER S. GOLDSTEIN

Associate General Counsel

 

SYDNEY A.R. FOSTER

Assistant General Counsel

 

/s/ Jeremy D. Horowitz         

JEREMY D. HOROWITZ

CA Bar No. 212242

Attorney

U.S. Equal Employment

  Opportunity Commission

Office of General Counsel

131 M St. NE, Fifth Floor

Washington, D.C.  20507

(202) 663-4716

jeremy.horowitz@eeoc.gov

 

 

CERTIFICATE OF COMPLIANCE

Pursuant to 3d Cir. L.A.R. 28.3(d) & 46.1(e), I certify that, as an attorney representing an agency of the United States, I am not required to be admitted to the bar of this Court.  See 3d Cir. L.A.R. 28.3, comm. cmt.  I also certify that all other attorneys whose names appear on this brief likewise represent an agency of the United States and are also not required to be admitted to the bar of this Court.  See id.

I certify that this brief complies with the typeface, type-style, and type-volume requirements set forth in Federal Rules of Appellate Procedure 29(a)(5) and 32(a)(5), (6), and (7)(B).  This brief contains 6,453 words, from the Statement of Interest through the Conclusion, as determined by the Microsoft Word for Office 365 word processing program, with a proportionally spaced typeface, 14-point Times New Roman, for text and footnotes.

Pursuant to this Court’s deferral of the requirement to file hard copies of filings, as announced in the Court’s press release of March 21, 2020, no hard copies of this brief have been filed with the Court.

I further certify pursuant to 3d Cir. L.A.R. 31.1(c) that, prior to electronic filing with this Court, I performed a virus check on the electronic version of this brief using Trend Micro Office Scan, version 12.0, and that no virus was detected.

/s/ Jeremy D. Horowitz               

JEREMY D. HOROWITZ

Attorney

U.S. Equal Employment

  Opportunity Commission

Office of General Counsel

131 M St. NE, Fifth Floor

Washington, D.C.  20507

(202) 663-4716

jeremy.horowitz@eeoc.gov

 

Dated: April 16, 2020

CERTIFICATE OF SERVICE

I, Jeremy D. Horowitz, hereby certify that I electronically filed the foregoing brief with the Court via the appellate CM/ECF system this 16th day of April, 2020.  I also certify that the following counsel of record, who have consented to electronic service, will be served the foregoing brief via the appellate CM/ECF system: