Reprinted with permission from the February 22nd edition of The Legal Intelligencer. (c) 2021 ALM Media Properties. Further duplication without permission is prohibited.
In Martinez v. UPMC Susquehanna, the United States Court of Appeals for the Third Circuit clarified the specificity required in pleading prima facie cases of discrimination in light of the holdings in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). The Third Circuit held that an age discrimination plaintiff need not plead the exact age or duties of the plaintiff’s alleged replacement in order to survive a motion to dismiss.
The plaintiff in the Martinez case appealed an order issued by the United States District Court for the Middle District of Pennsylvania dismissing the case for failure to state a claim under Iqbal and Twombly. The defendant, UPMC Susquehanna, employed the plaintiff, Dr. Martinez, as an orthopedic surgeon. Dr Martinez alleged in his complaint that UPMC Susquehanna terminated his employment and advised him that it was “moving in a different direction and his services were no longer needed.” UPMC Susquehanna also told Dr. Martinez that his termination had “nothing to do with his performance.” Dr. Martinez pleaded that he was seventy (70) years old, and that UPMC Susquehanna hired two doctors after his termination. The Complaint alleged that one of the hired physicians took over some of Dr. Martinez’s job duties, and that the second doctor was hired in response to a job posting for an orthopedic surgeon. Relevant to the Court’s analysis, Dr. Martinez alleged that both doctors were “significantly younger”, “less qualified,” and “less experienced” than Dr. Martinez.
UPMC Susquehanna moved to dismiss and the Middle District granted the motion, finding that a plaintiff cannot just allege that his replacements were “substantially younger.” The Middle District found that such an averment amounts to a legal conclusion and not a factual allegation. The Middle District further found fault with the complaint’s failure to specifically allege the replacement physicians’ ages and specialties.
The Third Circuit reversed. In doing so, the Court concluded that the averment that a replacement is “substantially younger” than the plaintiff is a factual averment and not a legal conclusion. The Third Circuit’s decision in this regard settles an issue for which there were inconsistent rulings within the Third Circuit. In Cauler v. Lehigh Valley Hosp., 2015 WL 2337311 at *2 (E.D. Pa. May 14, 2015), the United States District Court for the Eastern District of Pennsylvania specifically found that “simply stating” that a replacement was “substantially younger” did not satisfy the pleading requirements of Iqbal and Twombly, and that such an averment was a legal conclusion, not a factual allegation. In an unpublished opinion, not referenced in the Third Circuit’s opinion in the Martinez case, the Third Circuit approved, without discussion, the District Court’s assertion in Cauler that the allegation amounted to a “legal conclusion” and not a “factual allegation.” Cauler v. Lehigh Valley Hospital, 654 Fed. Appx. 69, 72 (3d Cir. June 30, 2016)
In Martinez, a reported decision, the Court puts the issue to rest, finding that a plaintiff satisfies the pleading standard by simply pleading that the replacement was “substantially younger” than the Plaintiff. The Court distinguished the Martinez complaint from Iqbal and Twombly. In those cases, the plaintiffs pleaded “restatements of the ultimate legal issues” that the plaintiffs would need to prove. In an age-discrimination case, the ultimate legal issue that a plaintiff needs to prove is that the employer terminated him because of his age – plaintiff need not prove an exact age of the replacement, or a minimum age gap, in order to prevail. The test, according to the Third Circuit, is whether the pleading asks the court to accept as true an ultimate legal issue. Dr. Martinez’s complaint did not ask the court to “accept as true” that his termination was the result of discrimination. Instead, the averment asked the court to accept as true that the physicians who replaced the plaintiff were “significantly younger.” “The inference is imperfect,” the Court noted, “but it is enough to get to discovery.”
In reaching its conclusion, the Court first set out that in order to defeat a motion to dismiss, it is sufficient, but not necessary, to allege a prima facie case. All a discrimination plaintiff need allege are enough facts to raise a reasonable expectation that discovery will reveal evidence of the elements. In Dr. Martinez’s case, his allegations that the physicians who replaced him were “significantly younger” was enough to raise a reasonable expectation that discovery would reveal the difference in ages between the replacements and Dr. Martinez. The Court noted that the allegations were a “commonsense” fact. In another nod to common sense, the Court also noted that a plaintiff might not have this information in order to plead it. The Court noted that such “commonsense” allegations are appropriate in other types of discrimination cases. Title VII plaintiffs could plead that their replacements are of a different race or national origin and survive a motion to dismiss. In Dr. Martinez’s case, the Court also took note of other “suspicious facts” alleged in his complaint, such as the fact that he had received earlier assurances that he would remain employed, or that he had been told his termination had nothing to do with his performance.
Iqbal and Twombly required a heightened degree of factual pleading in employment discrimination cases. In the Third Circuit, the cases after Iqbal and Twombly required a discrimination plaintiff to allege facts that plausibly suggest that the pleader is entitled to relief, and that such allegations rise above the level of “speculation.” See e.g. Wilkerson v. New Media Tech. Charter School, Inc., 522 F.2d 315 (2008). The cases uniformly forbid “conclusory” or “bare bones” allegations. The question of whether an assertion is “bare bones” or “conclusory” is the subject of many a motion to dismiss, including the one filed in the Martinez case. UPMC Susquehanna could easily have categorized the allegation that Dr. Martinez’s replacements were “substantially younger” as forbidden “speculation.” The Third Circuit’s decision puts an end to that argument. While the decision provides clarity around the specific issue of pleading that a plaintiff was replaced by someone outside the protected class, it also does more. The Martinez decision clarifies that a simple, “imperfect” factual allegation in a discrimination complaint – a clear target for an Iqbal and Twombly challenge – will survive a motion to dismiss if the court could apply “common sense” to determine that discovery will shed light on the accuracy the averment, and if the Court can find that the averment is not an “ultimate legal issue”. The Court’s limiting of Iqbal and Twombly in this way may mark a change in how motions to dismiss employment discrimination cases are argued and addressed by the courts in the Third Circuit.
Patricia Collins is a Partner and Employment Law Chair with Antheil Maslow & MacMinn, LLP, based in Doylestown, PA. Her practice focuses primarily on employment, commercial litigation and health care law. For advice on employment law issues relating to the COVID-19 crisis, or any employment law matters, contact Patricia Collins, 215.230.7500 ext. 126, or visit www.ammlaw.com.