Zeferino Martinez, M.d. v. UPMC SUSQUEHANNA On Appeal from the United States District Court for the Middle…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 19-2866
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ZEFERINO MARTINEZ, M.D.,
Appellant
v.
UPMC SUSQUEHANNA
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 4:19-cv-00327)
District Judge: Honorable Matthew W. Brann
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Argued: September 15, 2020
Before: KRAUSE, RESTREPO, and BIBAS, Circuit Judges
(Filed: January 29, 2021)
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Sidney L. Gold
Traci M. Greenberg [ARGUED]
Sidney L. Gold & Associates, P.C.
1835 Market Street, Suite 515
Philadelphia, PA 19103
Counsel for Appellant
Richard F. Schluter
Austin White [ARGUED]
McCormick Law Firm
835 West Fourth Street
Williamsport, PA 17701
Counsel for Appellee
Jeremy D. Horowitz [ARGUED]
Equal Employment Opportunity Commission
5th Floor
131 M Street, N.E.
Washington, DC 20507
Counsel for Amicus Curiae in support of Appellant

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_______________
OPINION OF THE COURT
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BIBAS, Circuit Judge.
At the pleading stage, an age-discrimination plaintiff does
not have to know his replacement’s exact age. That age can
come out in discovery.
A hospital allegedly fired orthopedic surgeon Zeferino
Martinez without much explanation and replaced him with two
younger doctors. The District Court dismissed his age-
discrimination suit, treating as conclusory his allegation that
his replacements were “significantly younger.” But that age
gap, we hold, is a factual allegation that the District Court must
take as true. It does enough to put the employer on notice. The
hospital knows the younger doctors’ exact ages and specialties,
and discovery will let Martinez uncover those and other details
in time for summary judgment and trial. We will thus reverse.
I. BACKGROUND
A. UPMC Susquehanna fires Martinez
On appeal from this dismissal, we take the factual allega-
tions as true: Martinez is a board-certified orthopedic surgeon
with four decades of experience. He has completed general and
orthopedic-surgery residencies and a spine fellowship and has
worked in several hospitals. In 2016, a hospital hired Martinez
on a three-year contract as its only orthopedic surgeon.

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In 2017, UPMC Susquehanna bought and took over the
hospital. UPMC’s representatives told Martinez that they
would continue his contract. They also discussed acquiring
new equipment and hiring an x-ray technician to help him and
other doctors. But just a month later, UPMC’s chief operating
officer and its executive director of the musculoskeletal divi-
sion fired Martinez. Their only explanation was that the hospi-
tal was “moving in a different direction and [Martinez’s] ser-
vices were no longer needed.” First Am. Compl. ¶ 18. Both ex-
ecutives told him that his firing “had nothing to do with [his]
performance.” Id. Indeed, when Martinez was fired, his sur-
gery schedule was booked up for several more months. He was
then seventy years old.
Soon after firing him, the hospital hired two doctors. One
was John Hunter, who took over at least some of Martinez’s
job functions. First Am. Compl. ¶ 20. In addition, the hospital
posted an opening for an orthopedic surgeon. Martinez applied
three times for this spot but never got a response. Instead, the
hospital hired Wingrove Jarvis. Both Hunter and Jarvis were
allegedly “significantly younger,” “less qualified,” and “less
experienced” than Martinez. Id. ¶¶ 20, 22.
B. Procedural history
Martinez sued the hospital under the Age Discrimination in
Employment Act (ADEA) and Pennsylvania Human Relations
Act (PHRA). He claimed that it had fired him and not rehired
him because of his age. The District Court granted the hospi-
tal’s motion to dismiss his amended complaint. Martinez v.
UPMC Susquehanna, No. 4:19-cv-00327, 2019 WL 3776587,
at *4 (M.D. Pa. Aug. 12, 2019). It held that a plaintiff cannot

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just allege that his replacement was “substantially younger”
because that is a legal conclusion, not a factual allegation that
must be taken as true. Id. at *3. Because the complaint did not
allege Hunter’s and Jarvis’s ages and specialties, the court
thought it could not infer age discrimination. Id. Martinez now
appeals. The EEOC appeared in our court as an amicus in sup-
port of Martinez; we thank it for its excellent briefing and ar-
gument.
C. Standard of review
We review the District Court’s dismissal de novo. McCaf-
ferty v. Newsweek Media Grp., Ltd., 955 F.3d 352, 356 (3d Cir.
2020). Our analysis of the ADEA applies equally to the PHRA.
See Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996).
To survive a motion to dismiss, a complaint need not be
detailed. Connelly v. Lane Constr. Corp., 809 F.3d 780, 786
(3d Cir. 2016). It needs just “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). That statement, in turn, must contain “enough
facts to state a claim to relief that is plausible on its face.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). But the com-
plaint does not have to be more specific than that. The short
and plain statement is enough to “give the defendant fair notice
of what the . . . claim is and the grounds upon which it rests.”
Id. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Plausible does not mean possible. The facts must be more
than “ ‘ merely consistent with’ a defendant’s liability.” Ash-
croft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550
U.S. at 557). But plausible does not mean probable either. Id.

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The court need only be able to draw a “reasonable inference”
that the defendant has broken the law. Id.
The court must take the complaint’s factual allegations as
true. But it may disregard labels, conclusions, and “formulaic
recitation[s] of the elements.” Twombly, 550 U.S. at 555. If,
after that, the pleaded facts plausibly entitle the plaintiff to re-
lief, the case should proceed to discovery.
II. BY ALLEGING THAT HIS REPLACEMENTS WERE
“SIGNIFICANTLY YOUNGER,” MARTINEZ PROPERLY
PLEADED AGE DISCRIMINATION
The issue here is whether the phrase “significantly
younger” is a factual allegation that the District Court must
take as true, or instead a legal conclusion. We hold that it is
factual. To survive a motion to dismiss, Martinez did not have
to allege his replacements’ exact ages or specialties.
A. A plaintiff’s burden at each stage of an age-
discrimination claim
Martinez’s complaint must allege enough facts to show that
he has a plausible entitlement to relief. To understand that con-
cept in the context of age-discrimination claims, we must work
backwards from the endgame. So we first discuss what facts
the plaintiff must ultimately prove at trial to win, then what he
must show to survive summary judgment, and finally what he
must allege to avoid dismissal.
1. What a plaintiff must prove at trial. An employer may
not fire or refuse to hire someone because of that person’s age.
29 U.S.C. § 623(a)(1). So an age-discrimination plaintiff must

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prove that it is more likely than not that, but for his age, the
employer would not have fired or failed to hire him. Gross v.
FBL Fin. Servs., Inc., 557 U.S. 167, 177–78 (2009). If the
plaintiff relies on circumstantial evidence, courts use the three-
part burden-shifting framework announced in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). Willis
v. UPMC Children’s Hosp. of Pittsburgh, 808 F.3d 638, 644
(3d Cir. 2015). First, the plaintiff must make out a prima facie
case. Id. Next, the employer must offer a legitimate, nondis-
criminatory explanation for its action. Id. Finally, the plaintiff
must show that this reason was a pretext for discrimination. Id.
2. What a plaintiff must show to survive summary judg-
ment. The summary-judgment framework is the same. At sum-
mary judgment, a plaintiff relying on circumstantial evidence
must make out a prima facie case under McDonnell Douglas.
An age-discrimination plaintiff must show that (1) he is at least
forty, (2) he is qualified for the job, (3) he suffered an adverse
employment action, and (4) he was replaced by (or passed over
in favor of) someone else “who was sufficiently younger so as
to support an inference of a discriminatory motive.” Willis, 808
F.3d at 644. After the prima facie case is shown, the court pro-
ceeds through the second and third steps of the McDonnell
Douglas burden-shifting framework. Keller v. Orix Credit All.,
Inc., 130 F.3d 1101, 1108 (3d Cir. 1997).
3. What a plaintiff must allege to defeat a motion to dis-
miss. To defeat a motion to dismiss, it is sufficient to allege a
prima facie case. Castleberry v. STI Grp., 863 F.3d 259, 266
(3d Cir. 2017). But it is not necessary. Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 508 (2002), cited with approval in

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Twombly, 550 U.S. at 569–70. The complaint need only allege
enough facts to “raise a reasonable expectation that discovery
will reveal evidence of [each] necessary element.” Fowler v.
UPMC Shadyside, 578 F.3d 203, 213 (3d Cir. 2009) (quoting
Phillips v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)).
B. “Significantly younger” is a factual allegation, not a
legal one
The District Court treated the complaint’s allegations about
“significantly younger” replacements for Martinez as legal
conclusions, so it disregarded them. Martinez, 2019 WL
3776587, at *3. Without them, the court held, there were not
enough facts in the complaint that plausibly gave rise to a claim
for relief. Id.
A plaintiff cannot survive dismissal just by alleging the
conclusion to an ultimate legal issue. In Twombly, the Court
refused to credit an allegation of a “contract, combination or
conspiracy to prevent competitive entry into [the defendants’]
. . . markets,” in violation of the Sherman Act. 550 U.S. at 548,
564–65. That was not a factual allegation of an illicit agree-
ment, but just a restatement of the ultimate legal issue that the
plaintiffs needed to prove. And in Iqbal, the Court refused to
credit the allegation that the defendants imposed harsh condi-
tions of confinement based solely on the plaintiff’s religion,
race, and national origin. 556 U.S. at 680–81. Discriminatory
purpose was the very legal conclusion that Iqbal needed to
prove.

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In an age-discrimination suit, the legal conclusion that the
plaintiff needs to win is that the employer took the adverse ac-
tion because of the plaintiff’s age. The replacements’ exact
ages are not ultimate issues or even legally mandated elements.
Indeed, no minimum age gap is needed to find that the replace-
ment is “sufficiently younger.” Barber v. CSX Distrib. Servs.,
68 F.3d 694, 699 (3d Cir. 1995). True, proof that the replace-
ment is significantly younger can satisfy the fourth prong of a
prima facie case. But claims premised on direct evidence of
age discrimination do not require a prima facie case at all.
Swierkiewicz, 534 U.S. at 511.
Even circumstantial-evidence cases do not always require
an age gap or a direct replacement. The plaintiff can instead
allege actions by an employer that, “if otherwise unexplained,
are more likely than not based on the consideration of imper-
missible factors.” Willis, 808 F.3d at 644 (quoting Pivirotto v.
Innovative Sys., Inc., 191 F.3d 344, 352 (3d Cir. 1999)). An
example would be when a defendant “continued to seek appli-
cants from among those having plaintiff’s qualifications.” Bar-
ber, 68 F.3d at 698 (internal quotation omitted).
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.

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Commonsense allegations are used in other types of dis-
crimination 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 observa-
tion, without genealogy, even though these observations are
fallible. So too an age-discrimination plaintiff can plead a sub-
stantial age gap without knowing dates of birth. This is a com-
monsense description of a subsidiary fact, not the ultimate is-
sue the plaintiff must prove.
C. Martinez’s complaint states a plausible age-
discrimination claim
The factual allegations in Martinez’s complaint state the
heart of a prima facie case. The complaint says he is over forty,
he is qualified for the job, and he was fired and not rehired. It
also alleges that his replacements were not only “significantly
younger,” but also less qualified and experienced. First Am.
Compl. ¶¶ 20, 22. These factual allegations of age differences
are enough. Discovery should reveal the replacements’ exact
ages, confirming or putting to rest that allegation. The com-
plaint also adds suspicious details, like the hospital’s earlier as-
surances that it would keep Martinez on and its executives’
statements that his firing was not based on his performance.
These facts raise the reasonable expectation that discovery will
uncover evidence of discriminatory motive.
Though Martinez did not allege his replacements’ special-
ties, he need not do that yet. Not all of a plaintiff’s duties have
to go to a single replacement; the replacement’s job does not

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have to match the plaintiff’s job exactly. Sempier v. Johnson &
Higgins, 45 F.3d 724, 729–30 (3d Cir. 1995). Nor does Mar-
tinez have to anticipate and preempt the hospital’s possible ex-
planations (at least, not yet). The court at summary judgment—
and ultimately, perhaps, the jury at trial—can decide whether
the age differences give rise to an inference of discrimination
and whether the alleged replacements are relevant compara-
tors. If he makes out that prima facie case, the hospital will next
have to offer a legitimate, nondiscriminatory explanation. Only
then must the plaintiff respond and show pretext.
The complaint does enough to put the hospital on notice. It
alleges who fired Martinez, when, and how. It names his re-
placements and alleges that they were “significantly younger.”
Though Martinez is unlikely to know his replacements’ exact
ages and specialties until discovery, the hospital can look up
this information in its records. It now knows enough to re-
spond. See Fowler, 578 F.3d at 212.
* * * * *
Martinez plausibly pleaded age discrimination. He alleged
that his replacements were “significantly younger.” That was
enough. He did not also have to allege their specialties or exact
age gaps in his complaint. We will thus reverse and remand to
let this case proceed to discovery.

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