The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
LESLIE ZUCK, No. 4:19-CV-01983
Plaintiff, (Judge Brann)
v.
PENNSYLVANIA CERTIFIED
ORGANIC INC.,
Defendant.
MEMORANDUM OPINION
APRIL 1, 2020
Plaintiff Leslie Zuck brings a complaint alleging age discrimination under
the Age Discrimination in Employment Act1 (ADEA) and the Pennsylvania
Human Rights Act2 (PHRA). Defendant Pennsylvania Certified Organic Inc.
moves to dismiss her complaint for failure to state a claim under Federal Rule of
Civil Procedure 12(b)(6).
I. BACKGROUND3
Twenty years ago, Zuck founded Pennsylvania Certified Organic, a
nonprofit corporation located in Spring Mills, Pennsylvania.4 She remained
employed by Pennsylvania Certified Organic from its founding until 2018.5
1 29 U.S.C. § 623.
2 43 Pa. C.S.A. § 953.
3 The facts in this section are drawn from Zuck’s complaint. See Sherman v. John Brown Ins.
Agency Inc., 38 F. Supp. 3d 658, 662–63 (W.D. Pa. 2014). As is appropriate on a motion to
dismiss, I accept all factual allegations as true and construe the complaint in the light most
In July 2018, the president of Pennsylvania Certified Organic’s board of
directors pressured Zuck to retire.6 The president told her that it was not about
Zuck’s job performance, but rather that the board was “ready to move on to the
next generation of leadership.”7 Zuck declined to retire.8 On September 5, 2018,
Zuck was fired for the stated reason of unsatisfactory job performance, contrary to
what the president had told her two months prior.9 Pennsylvania Certified Organic
then appointed two interim co-executive directors who are in their 30s to replace
Zuck, who was 61 years old as of the filing of her complaint.10
That complaint was filed on November 19, 2019.11 Pennsylvania Certified
Organic moved to dismiss the complaint on January 20, 2020.12 That motion is
now ripe for disposition.
II. LEGAL STANDARD
A plaintiff is required to provide “a short and plain statement of the claim
showing that the pleader is entitled to relief.”13 A claimant must state a plausible
4 Compl. ¶ 4 (ECF No. 1).
5 Id. at ¶ 7.
6 Id. at ¶ 6.
7 Id.
8 Id. at ¶ 7.
9 Id.
10 Id. at ¶¶ 4, 8.
11 Compl.
claim for relief.14 “A claim has facial plausibility when the pleaded factual content
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.”15 The plaintiff’s factual allegations must rise above the
speculative level, but the plaintiff “need only put forth allegations that raise a
reasonable expectation that discovery will reveal evidence of the necessary
element.”16 A court ruling on a motion to dismiss 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.”17
The ADEA prohibits employers from discriminating against individuals on
the basis of their age.18 Age discrimination may be established by either direct or
indirect evidence.19 When relying on indirect evidence, a plaintiff may establish a
prima facie case of age discrimination by demonstrating that: (1) the plaintiff is
forty years of age or over, (2) she is qualified for the position in question, (3) she
suffered an adverse employment action, and (4) she was replaced by a person
13 Fed. R. Civ. P. 8.
14 See Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014) (citing
Ashcroft v. Iqbal, 556 U.S. 662 (2009)).
15 Thompson, 748 F.3d at 147.
16 Id.
17 Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008).
18 29 U.S.C. § 623(a)(1).
sufficiently younger than her to permit an inference of age discrimination.20 The
PHRA’s age-discrimination provision is interpreted coextensively with the
ADEA.21
III. DISCUSSION
Pennsylvania Certified Organic moves to dismiss Zuck’s complaint under
Rule 12(b)(6) for failure to state a claim. Specifically, Pennsylvania Certified
Organic argues that Zuck has failed to adequately plead prongs 2 and 4 of her age-
discrimination claim: that she was qualified for the position and that she was
replaced by a person sufficiently younger than her to permit an inference of age
discrimination.
Zuck has sufficiently pleaded that she was qualified for the position. First,
she alleges that the president of the board of directors specifically told her that her
job performance was not deficient just two months before she was fired.22 That
direct allegation is bolstered by the facts that she founded the company and had
twenty years of experience working for it.23 Those facts are sufficient to support a
finding that she was qualified for and performed satisfactorily in her position.
Zuck has also adequately pleaded that she was replaced by sufficiently
younger persons to support an inference of age discrimination by pleading that her
20 Id.
21 See Fasold v. Justice, 409 F.3d 178, 183 (3d Cir. 2005).
22 Compl. ¶ 6.
replacements were in their 30s, approximately thirty years younger than her.24 The
fact that these replacements were on an “interim” basis does not render her
pleading insufficient.25
Because I find that Zuck has adequately pleaded these elements, I deny
Pennsylvania Certified Organic’s motion to dismiss.
IV. CONCLUSION
For the reasons set forth above, Defendant Pennsylvania Certified Organic
Inc.’s Motion to Dismiss Plaintiff’s Complaint (ECF No. 5) is DENIED.
An appropriate Order follows.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
United States District Judge
24 Id. at ¶ 8.
25 See Smith v. M&M Mgmt. Co., Civil Action No. 3:17-cv-7978, 2019 WL 1397401, at *12
(D.N.J. Mar. 28, 2019) (finding a factual issued was raised on a motion for summary judgment
where the 57-year-old plaintiff was replaced by a significantly younger interim employee before