Monday, March 1, 2021

Third Circuit: Allegation of "significantly younger" comparator is good enough to state an age discrimination claim under the ADEA

The Third Circuit recently published a precedential decision on a pretty interesting little pleading issue. In Martinez v. UPMC Susquehanna, the plaintiff alleged that he was replaced by people who were "significantly younger" than him. To use a comparator to establish an ADEA claim, the comparator must be "substantially younger." 

The pleading here bumps up against some general pleading requirements:

  • First, when deciding whether a plaintiff has stated a claim, a court is only to consider factual allegations and not conclusory statements. "Significantly younger" could be viewed as conclusory. 
  • Not official use.
    Second, plaintiffs generally cannot survive a motion to dismiss just by "alleging the conclusion to an ultimate legal issue." And, whether someone is actually substantially younger is a conclusion of law. For example, see Narin v. Lower Merion School District, 206 F.3d 323, 333 n.9 (3d Cir. 2000) (7-year age difference between 56-year-old plaintiff and 49-year-old comparator was insufficient to “permit an inference of discrimination”); Gutknecht v. SmithKline Beecham Clinical Lab., 950 F. Supp. 667, 672 (E.D. Pa. 1996) ("Although no uniform rule exists, it is generally accepted that when the difference in age between the fired employee and his or her replacement is fewer than five or six years, the replacement is not considered sufficiently younger, and thus no prima facie case is made"). 
The Third Circuit, however, viewed the plaintiff's allegation that his comparators were "significantly younger" as a factual allegation and not a conclusion of law:

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.
In my experience litigating these cases, this "commonsense" is indeed "imperfect." I once discovered that a proposed comparator was indeed younger than the plaintiff . . . by eight days. That said, it can sometimes be obvious to a plaintiff that their replacement is "significantly younger" - even if the exact age of the comparator is not known. The Third Circuit's decision here will let that issue play out in discovery. 

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