The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ZEFERINO MARTINEZ, M.D., No. 4:19-CV-00327
Plaintiff, (Judge Brann)
v.
UPMC SUSQUEHANNA,
Defendant.
MEMORANDUM OPINION
AUGUST 12, 2019
I. BACKGROUND
On May 30, 2019, Plaintiff, Zeferino Martinez, M.D., (hereinafter “Dr.
Martinez”), filed a two-count age discrimination1 amended complaint against
Defendant, UPMC Susquehanna. On June 13, 2019,2 Defendant filed a motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a
claim. The motion is now ripe for disposition; for the reasons that follow, it is granted
and the case dismissed.
1 Count I is brought pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621,
et seq. Count II is brought pursuant to the Pennsylvania Human Relations Act, 43 P.S. § 951
et seq.
II. DISCUSSION
A. Motion to Dismiss Standard
Under Federal Rule of Civil Procedure 12(b)(6), the Court dismisses a
complaint, in whole or in part, if the plaintiff has failed to “state a claim upon which
relief can be granted.” A motion to dismiss “tests the legal sufficiency of a pleading”3
and “streamlines litigation by dispensing with needless discovery and factfinding.”4
“Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue
of law.”5 This is true of any claim, “without regard to whether it is based on an
outlandish legal theory or on a close but ultimately unavailing one.”6
Following the Roberts Court’s “civil procedure revival,”7 the landmark
decisions of Bell Atlantic Corporation v. Twombly8 and Ashcroft v. Iqbal9 tightened
the standard that district courts must apply to 12(b)(6) motions.10 These cases
“retired” the lenient “no-set-of-facts test” set forth in Conley v. Gibson and replaced it
with a more exacting “plausibility” standard.11
3 Richardson v. Bledsoe, 829 F.3d 273, 289 n.13 (3d Cir. 2016) (Smith, C.J.) (citing Szabo v.
Bridgeport Machines, Inc., 249 F.3d 672, 675 (7th Cir. 2001) (Easterbrook, J.).
4 Neitzke v. Williams, 490 U.S. 319, 326–27 (1989).
5 Neitzke, 490 U.S. at 326 (citing Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).
6 Neitzke, 490 U.S. at 327.
7 Howard M. Wasserman, THE ROBERTS COURT AND THE CIVIL PROCEDURE REVIVAL, 31 Rev.
Litig. 313, 316, 319-20 (2012).
8 550 U.S. 544 (2007).
9 556 U.S. 662, 678 (2009).
10 Iqbal, 556 U.S. at 670 (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)) (“[a]cknowledging
that Twombly retired the Conley no-set-of-facts test”).
11 Iqbal, 556 U.S. at 670 (citing Conley v. Gibson, 355 U.S. 41 (1957)) (“[a]cknowledging that
Accordingly, after Twombly and Iqbal, “[t]o 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.’”12 “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”13 “Although the plausibility
standard does not impose a probability requirement, it does require a pleading to show
more than a sheer possibility that a defendant has acted unlawfully.”14 Moreover,
“[a]sking for plausible grounds . . . calls for enough facts to raise a reasonable
expectation that discovery will reveal evidence of [wrongdoing].”15
The plausibility determination is “a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.”16 No matter
the context, however, “[w]here a complaint pleads facts that are ‘merely consistent
with’ a defendant’s liability, it ‘stops short of the line between possibility and
plausibility of entitlement to relief.’”17
When disposing of a motion to dismiss, the Court “accept[s] as true all factual
allegations in the complaint and draw[s] all inferences from the facts alleged in the
light most favorable to [the plaintiff].”18 However, “the tenet that a court must accept
12 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).
13 Iqbal, 556 U.S. at 678.
14 Connelly v. Lane Const. Corp., 809 F.3d 780 (3d Cir. 2016) (Jordan, J.) (internal quotations
and citations omitted).
15 Twombly, 550 U.S. at 556.
16 Iqbal, 556 U.S. at 679.
17 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (internal quotations omitted)).
as true all of the allegations contained in the complaint is inapplicable to legal
conclusions.”19 “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”20
As a matter of procedure, the United States Court of Appeals for the Third
Circuit has instructed that:
Under the pleading regime established by Twombly and Iqbal, a court
reviewing the sufficiency of a complaint must take three steps. First, it
must tak[e] note of the elements [the] plaintiff must plead to state a claim.
Second, it should identify allegations that, because they are no more than
conclusions, are not entitled to the assumption of truth. Finally, [w]hen
there are well-pleaded factual allegations, [the] court should assume their
veracity and then determine whether they plausibly give rise to an
entitlement to relief.21
A plaintiff in an employment discrimination case does not need to establish a
prima facie case in his or her complaint. The Third Circuit clarified this point
recently, stating: “a complaint need not establish a prima facie case in order to survive
a motion to dismiss.”22
B. Facts Alleged in the amended Complaint
The facts alleged in the amended complaint, which I must accept as true for the
purposes of this motion, are as follows.
Dr. Martinez was employed by Susquehanna Health System, an organization
that was ultimately acquired by, and renamed, UPMC Susquehanna. Seventy-year-
19 Iqbal, 556 U.S. at 678 (internal citations omitted); see also Fowler v. UPMC Shadyside, 578
F.3d 203, 210 (3d Cir. 2009) (Nygaard, J.) (“After Iqbal, it is clear that conclusory or ‘bare-
bones’ allegations will no longer survive a motion to dismiss.”).
20 Iqbal, 556 U.S. at 678.
21 Connelly, 809 F.3d at 787 (internal quotations and citations omitted).
old23 Dr. Martinez has been a board-certified orthopedic surgeon since 1986. Dr.
Martinez began his employment with Susquehanna Health System on December 1,
2016 with a thirty-six-month employment contract.
On October 1, 2017, UPMC Susquehanna acquired Susquehanna Health
System. At that time, Dr. Martinez was “informed [] that his contract with
Defendant’s predecessor would continue with the Defendant.”24 Shortly thereafter,
on November 3, 2017, UPMC Susquehanna “abruptly terminated Plaintiff Martinez’s
employment allegedly because the Defendant was ‘moving in a different direction and
Plaintiff Martinez’s services were no longer needed.’”25 Plaintiff was informed that
his termination “had nothing to do with his performance.”26
Dr. Martinez was replaced by “a significantly younger, less qualified, less
experienced individual.”27 Another position for an orthopedic surgeon later opened
up with UPMC Susquehanna. Dr. Martinez applied for this position on three separate
occasions. Dr. Martinez was qualified for the position, but he never received a
response from UPMC Susquehanna to any of his applications. This second position
was also filled by “a significantly younger, less qualified, less experienced
individual.”28
23 The complaint doesn’t specify whether Dr. Martinez is seventy now, or was seventy at the time
of his termination.
24 ECF No. 11 at ¶ 16.
25 Id. at ¶ 18.
26 Id.
27 Id. at 20.
C. Analysis
Defendant argues Dr. Martinez’s claims are not plausible because he was
replaced by a podiatrist, who is not an appropriate comparator, as opposed to an
orthopedic surgeon, who would be an appropriate comparator. And for that matter, his
replacement was a podiatrist whose age was not alleged in the complaint. Moreover,
the failure to hire allegations are “bare-bones” allegations that are mere legal
conclusions.29
The central provision of the ADEA is 29 U.S.C. § 623, which provides, in
relevant part, as follows:
§ 623. Prohibition of age discrimination
(a) Employer practices. It shall be unlawful for an employer—
(1) to fail or refuse to hire or to discharge any individual or otherwise
discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such
individual's age;
To establish an age discrimination claim under the ADEA, a plaintiff must
allege that (1) 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.”30
29 See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (Nygaard, J.) (“After Iqbal,
it is clear that conclusory or ‘bare-bones’ allegations will no longer survive a motion to
dismiss.”).
Here, Dr. Martinez has failed to state a claim upon which relief may be granted.
“The plaintiff must show that age was the ‘but for’ cause of the adverse action.”31 Dr.
Martinez has offered no facts from which the Court may infer that he was terminated
and later not hired based on age discrimination. To establish the ‘but for’ reason for
UPMC Susquehanna’s termination and later failure to rehire him, Dr. Martinez simply
states that the jobs were filled by “substantially younger” physicians. The ages and
specialties of these alleged comparators are not alleged.
“While the plaintiff does not have to establish all of the elements of the prima
facie case, [he] is at least expected to offer enough factual evidence to ‘raise a
reasonable expectation that discovery will reveal evidence of’ those elements.”32
“Simply stating that a ‘substantially younger’ person was hired instead of the plaintiff
is not enough to show an inference of discrimination.”33 This is a legal conclusion,
not a factual allegation.34
Defendant’s motion will be granted without leave to amend. Plaintiff has
already amended his complaint once in response to an earlier motion to dismiss, and
31 Cauler v. Lehigh Valley Hosp., 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), and aff’d, 654 F. App’x 69 (3d Cir.
2016) citing Gross v. FBL Financial Servs., Inc., 557 U.S. 167, 176, (2009).
32 Id. citing Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir.2008) (quoting Twombly,
550 U.S. at 556).
33 Id.
34 See Sempier v. Johnson & Higgins, 45 F.3d 724, 729 (3d Cir.1995) (explaining how the
determination of whether an employee is “sufficiently younger” is made by the fact-finder in
looking at the ages of both the plaintiff and the employee who was hired and the other
circumstances of the case) (citations omitted); Ashcroft v. Iqbal, 556 U.S. 662, 681–82, 129
he did not seek leave to file a second amended complaint in response to the instant
motion. In this circumstance, and considering the paucity of the allegations advanced
here, the Court is not required to permit a second amended complaint, sua sponte.35
III. CONCLUSION
Defendants’ Motion to Dismiss pursuant to Rule 12(b)(6) is granted.
An appropriate Order follows.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
United States District Judge
35 Cauler v. Lehigh Valley Hosp., Inc., 654 F. App’x 69, 73 (3d Cir. 2016) citing Fletcher–
Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 252–53 (3d Cir.2007)
(establishing that district courts must sua sponte grant plaintiffs leave to amend only in civil
rights cases: “In sum, we hold that in ordinary civil litigation it is hardly error for a district
court to enter final judgment after granting a Rule 12(b)(6) motion to dismiss when the plaintiff
has not properly requested leave to amend its complaint. This holding does not impose any
undue burden on civil plaintiffs, nor does it risk plaintiffs suffering final judgment on the basis
of a technical pleading defect. Here, Fletcher–Harlee was not caught unaware by the Court's
entry of judgment, as it had notice of Pote's motion and every opportunity to amend its