Dr. Zeferino Martinez, a 70-year-old orthopedic surgeon, was fired in 2017 by UPMC Susquehanna, a Pennsylvania located hospital where he worked.  UPMC claimed Dr. Martinez was let go not because of his work performance, but rather because the hospital was “moving in a different direction and his services were no longer needed.”  UPMC replaced Dr. Martinez with two younger doctors, although their ages were not known by Dr. Martinez at the time. Thereafter, Dr. Martinez filed a lawsuit in federal court alleging his firing was unlawfully motivated by his age in violation of, inter. alia., the federal Age Discrimination in Employment Act (ADEA).  The District Court granted UPMC’s motion to dismiss holding that a plaintiff cannot just allege that his replacement was “substantially younger” because that is a legal conclusion, not a factual allegation that must be taken as true. Martinez c. UPMC Susquehanna, 2019 U.S. Dist. LEXIS 135176, WL 3776587 (M.D. P.A. Aug. 12, 2019) at *3. Because the complaint did not allege the replacement doctors’ ages, the Court thought it could not infer age discrimination. at *4.  Dr. Martinez appealed the dismissal to the United State Court of the Appeals for the Third Circuit.

A motion to dismiss brought in federal court must be denied if the complaint, on its face, contains sufficient factual matter to show that a claim to relief is “plausible.”  Ashcroft v. lgbal, U.S., 129 S. Ct. 1937 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)). The “plausibility standard” does not require the Plaintiff to establish a probability of liability, only more than a mere possibility. Id. (citing Twombly, 550 U.S. at 556-57, 570). This analysis requires the reviewing court to “draw upon its judicial experience and common sense” in making this determination, and to consider the complaint as a whole and in context. Iqbal, at 1950. The 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.”‘ Phillips v. County of Allegheny, 515 F.3d 224,231 (3rd Cir. 2008) (quoting Pinker v. Roche Holding Ltd., 292 F.3d 361, 374 n.7 (3rd Cir. 2002)). However, “[t]his standard does not require “heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its fact.” Litras v. PVM Intern. Corp., No.  11-cv-5695 (JFB) (AKT), 2013 WL 4118482 (E.D.N.Y.  Aug.  15, 2013) (citing Twombly, 550 U.S. at 556-57, 570). Thus, the court determines whether the plaintiff is entitled to offer evidence in support of the allegations, and not whether the plaintiff will ultimately prevail. Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3rd Cir. 1997) (citing Scheuer v. Rhodes, 416 U.S. 232,236 (1974)).

The Third Circuit in reversing the District Court below, viewed Dr. Martinez’s allegation that his replacement doctor comparators were “significantly younger” as a factual allegation and not a conclusion of law. Martinez c. UPMC Susquehanna, 986 F.3d. 261, 265 (3rd Cir. 2021).  In doing so, the Third Circuit opined:

Martinez alleges a commonsense fact. He does not ask us to take as true that the hospital discriminated against him based on his age. He asks us only to accept that the men who replaced him were “significantly younger” than he was. That is a matter of common parlance and observation. People often look at someone’s appearance or experience and infer that person’s rough age. The inference is imperfect, but it is enough to get to discovery.

Commonsense allegations are used in other types of discrimination cases too. For instance, a Title VII complainant can allege that his replacement is of a different race or national origin. See, e.g., Swierkiewicz, 506 U.S. at 514; Littlejohn v. City of New York, 795 F.3d 297, 313 (2d Cir. 2015). One can plead someone else’s race or national origin based on observation, without genealogy, even though these observations are fallible. So too an age-discrimination plaintiff can plead a substantial age gap without knowing dates of birth. This is a commonsense description of a subsidiary fact, not the ultimate issue the plaintiff must prove.

986 F.3d. at 267.

The Third Circuit’s “commonsense” approach should provide useful guidance to our New Jersey state courts when interpreting discrimination lawsuits brought under New Jersey’s Law Against Discrimination (LAD). “[I]t is a frequent observation that we rely on the federal courts and their construction of federal laws for guidance in those circumstances in which our LAD is unclear.” Victor v. State, 203 N.J. 383 (2010); see also Raspa v. Office of Sheriff of County of Gloucester, 191 N.J. 323 (2007).

If your employment has been terminated or you have suffered any other form of adverse employment action because of your age, call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help. Mashel Law, located in Morganville, New Jersey, is dedicated to protecting the rights of employees.

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