TYSH v. RAZOR TECHNOLOGY, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ANASTASIYA TYSH,

Plaintiff, CIVIL ACTION

v. NO. 25-2497

RAZOR TECHNOLOGY, LLC and

ELEMICA, INC.,

Defendants.

Pappert, J. September 9, 2025

MEMORANDUM

Anastasiya Tysh sued Razor Technology, LLC and Elemica, Inc., asserting

claims under the Age Discrimination in Employment Act, 42 U.S.C. § 1981, Title VII of

the Civil Rights Act of 1964, the Pennsylvania Human Relations Act and the

Pennsylvania Whistleblower Law. Elemica moves, purportedly pursuant to Federal

Rule of Civil Procedure 12(b)(6), to dismiss all claims against it, though the motion

argues Tysh lacks standing, not that she fails to state claims upon which relief can be

granted. The Court evaluates the Complaint under the appropriate standard and

grants the motion in part, dismissing without prejudice Tysh’s § 1981, Title VII, PHRA

and Pennsylvania Whistleblower Law claims.

I

Tysh, a Ukrainian female born in 1972, worked as an IT Project Manager at

Elemica from 2004 to 2019. (Compl. ¶¶ 1–3, Dkt. No. 1.) In 2019, to accommodate

Tysh’s “temporary relocation overseas,” Elemica “restructured” Tysh’s employment so

that she would now be “a full-time 1099 employee with Razor.” (Id. ¶ 18.) Elemica still

controlled Tysh’s “job duties, daily tasks, client exposure, team and management

structure”—Tysh’s “only additional task . . . was to submit timesheets twice a month to

Razor who then, in turn, billed Elemica to pay” Tysh. (Id. ¶ 20.)

From 2022 to 2023, Tysh would often flag for Chris Abato, an Elemica team

manager, problems with a “deficient product offered . . . by Elemica.” (Id. ¶¶ 29–32,

41.) Around this time, Abato began to favor Elena Jimenez, “a younger female

employee of Elemica . . . grossly underperforming” on the same project as Tysh. (Id.

¶ 37.) Abato acknowledged his behavior, but his interactions “became more friendly

and flirtatious.” (Id. ¶¶ 37–40.)

Abato informed Tysh in April of 2023 “that all Razor contractors with Elemica

would be terminated in the near future,” (Id. ¶ 21), and “Razor would be contacting

[Tysh] formally with details of her termination,” (Id. ¶ 22). A few days later, Tysh lost

connection to Elemica corporate networks, (Id. ¶ 23), and hasn’t heard from Razor or

Elemica since,1 (Id. ¶ 25). Tysh later learned that she was the only Razor contractor

terminated. (Id. ¶ 47.) Tysh was fifty-one years old at the time of her firing and

believes Jimenez replaced her. See (Id. ¶¶ 46, 49).

II

To avoid dismissal under Federal Rule of Civil Procedure 12(b)(6), a complaint

must “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007). A claim is facially plausible if the plaintiff pleads facts from

which the Court can infer “that the defendant is liable for the misconduct alleged.”

1 The Complaint never identifies who fired Tysh. It only alleges that “Elemica and/or Razor”

terminated her. See (Compl. ¶¶ 46, 56, 67, 71, 80, 84, 93, 96, 107, 111, 122, 126, 137, 140, 149–50).

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). Although

this “plausibility standard is not akin to a ‘probability requirement,’” it demands “more

than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly,

550 U.S. at 556).

Assessing plausibility under Twombly and Iqbal is a three-step process. See

Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016). Step one is to “take

note of the elements the plaintiff must plead to state a claim.” Id. (alterations omitted)

(quoting Iqbal, 556 U.S. at 675). Next, the Court should identify allegations that,

“because they are no more than conclusions, are not entitled to the assumption of

truth.” Id. (quoting Iqbal, 556 U.S. at 679). Finally, for all “well-pleaded factual

allegations, [the] court should assume their veracity and then determine whether they

plausibly give rise to an entitlement to relief.”2 Id. (alteration in original) (quoting

Iqbal, 556 U.S. at 679). If the well-pleaded facts do not nudge the “claims across the

line from conceivable to plausible,” the Court must dismiss the complaint. Twombly,

550 U.S. at 570.

III

A

In Counts I and V, Tysh alleges age discrimination under the ADEA and PHRA.3

The ADEA makes it unlawful “to fire or refuse to hire someone because of that person’s

2 Elemica attaches to its motion a declaration from Chris Abato, (Decl. of Christopher Abato,

Dkt. No. 18-2), which the Court disregards. See Se. Pa. Transp. Auth. v. Drummond Decatur & State

Props., LLC, No. 21-4212, 2022 WL 784531, at *2 (E.D. Pa. Mar. 15, 2022) (finding that declarations

attached to a motion to dismiss “clearly may not be considered” at the pleadings stage (quoting

Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014))).

3 The PHRA is generally interpreted in accord with its federal counterparts, like the ADEA.

See Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996).

age.” Martinez v. UPMC Susquehanna, 986 F.3d 261, 265 (3d Cir. 2021) (citing 29

U.S.C. § 623(a)(1)). An ADEA claim requires that the plaintiff (1) was “at least forty,”

(2) was “qualified for the job,” (3) “suffered an adverse employment action” and (4) “was

replaced (or passed over in favor of) someone else ‘who was sufficiently younger so as to

support an inference of discriminatory motive.’”4 Id. at 266 (quoting Willis v. UPMC

Child.’s Hosp. of Pittsburgh, 808 F.3d 638, 644 (3d Cir. 2015)). To survive a motion to

dismiss, an age-discrimination plaintiff “need only allege enough facts to ‘raise a

reasonable expectation that discovery will reveal evidence of [each] necessary element.”

Id. (alteration in original) (quoting Fowler v. UPMC Shadyside, 578 F.3d 203, 213 (3d

Cir. 2009)).

Tysh alleges she was over forty, see (Compl. ¶ 49), was qualified for her job, see

(Id. ¶ 53) and suffered an adverse employment action, see (Id. ¶¶ 45–46, 50–52, 106–

08). She also contends Elemica replaced her with Jiminez, “a younger, less experienced

employee.” (Id. ¶ 46.) Although this allegation is “[u]pon information and belief,” see

(Id.), the Court accepts it as true because Elemica’s employment records are “uniquely

within [its] possession.” See Lincoln Benefit Life Co. v. AEI Life, LLC, 800 F.3d 99, 107

n.31 (3d Cir. 2015). These allegations align with those in Martinez, where an

age-discrimination claim survived dismissal given the plaintiff’s allegations that his

replacements were “significantly younger,” “less qualified” and “less experienced.” See

986 F.3d at 264, 267. Tysh also alleges that Elemica gave her “exceptional reviews . . .

4 The Court does not confine itself to the grounds in Elemica’s motion because the Complaint

will only survive if it plausibly states a claim upon which relief can be granted, Twombly, 550 U.S. at

570, and doing so does not depend on Elemica’s argument for dismissal. See also 5B Wright &

Miller’s Federal Practice & Procedure § 1349 (4th ed. 2025) (“The district court has broad discretion

when handling motions to dismiss under Rule 12(b) . . . .”).

year after year,” see (Compl. ¶ 27), until Abato began to favor Jiminez in 2022, see (Id.

¶¶ 37, 43–44). And contrary to what Abato told Tysh, she “was the only [Razor

contractor] who was actually terminated.” (Id. ¶ 47.)

B

To state an age-discrimination claim, Tysh must further allege that she was an

employee of Elemica and not an independent contractor.5 See Covington v. Int’l Ass’n of

Approved Basketball Offs., 710 F.3d 114, 119 (3d Cir. 2013); see also E.E.O.C. v. Zippo

Mfg. Co., 713 F.2d 32, 37 (3d Cir. 1983). She does not explicitly do so, alleging rather

that she was a “full-time 1099 employee with Razor,” see (Compl. ¶ 2), and “performed

work for Elemica as a contractor through” Razor, see (Id. ¶ 18).

As an initial matter, Tysh’s allegations allow for the inference that Razor and

Elemica acted, at least at some relevant time, as joint employers. See (Id. ¶ 19). Joint

employers “exert significant control over the same employees.” Nolan v. TalentBurst,

Inc., No. 22-4556, 2024 WL 1386036, at *5 (E.D. Pa. Mar. 29, 2024) (citing N.L.R.B. v.

Browning Ferris Indus. of Pa., Inc., 691 F.2d 1117, 1124 (3d Cir. 1982)). The Complaint

plausibly alleges Elemica and Razor did so by acting together to hire and fire Tysh, see

(Compl. ¶¶ 18–25), pay her, see (Id. ¶ 20), and provide and supervise her work, see (Id.

¶¶ 18–20).

At this stage, the Court cannot conclude that Tysh was not an Elemica employee

for purposes of her ADEA claim. To distinguish between employees and independent

5 Title VII cases guide an ADEA analysis of Tysh’s employment status and Elemica’s liability

under a joint-employer theory. See Pavlik v. Int’l Excess Agency, Inc., 417 F. App’x 163, 166 (3d Cir.

2011) (“Both Title VII and ADEA use the same test to determine whether an individual is an

employee or an independent contractor.” (citing Nationwide Mut. Ins. v. Darden, 503 U.S. 318, 322–

23 (1992))); Vrabel v. Greater Johnstown Water Auth., No. 3:2006-73, 2008 WL 868152, at *6–11

(W.D. Pa. Mar. 31, 2008) (analyzing an ADEA claim using Title VII’s joint-employer framework).

contractors, courts examine “the level of control the defendant[s] . . . exerted over the

plaintiff: which entity paid [the employees’] salaries, hired and fired them, and had

control over their daily employment activities.” Covington, 710 F.3d at 119 (3d Cir.

2013) (alteration in original) (citation omitted). Again, Tysh alleges Elemica controlled

her day-to-day activities, see (Compl. ¶ 20), paid Tysh indirectly, see (Id.), and informed

Tysh of her termination via Elemica employee Chris Abato, see (Id. ¶¶ 21–22). Because

“the precise contours of an employment relationship can only be established by a

careful factual inquiry,” the issue of Tysh’s employment status is better suited for

“resolution at the summary judgment stage, rather than at the motion to dismiss

stage.”6 Washington v. Client Network Servs. Inc., 590 F. App’x 26, 130 (3d Cir. 2014)

(first quoting Graves v. Lowery, 117 F.3d 723, 729 (3d Cir. 1997); then quoting Mariotti

v. Mariotti Bldg. Prods., Inc., 714 F.3d 761, 768 n.5 (3d Cir. 2013)); see also Clemente v.

Allstate Ins., 647 F. Supp. 3d 356, 375 (W.D. Pa. 2022) (finding that the independent-

contractor inquiry is “fact-intensive” and thus “ill-suited to resolution on the

pleadings”).

IV

In Counts II, III and VI, Tysh alleges claims of racial discrimination under

§ 1981, Title VII and the PHRA.7 Title VII makes it an “unlawful employment practice”

6 Tysh’s potential joint-employer theory can also be examined more fully at summary

judgment. See Rippy v. Phila. Dep’t of Pub. Health, No. 19-1839, 2019 WL 4849439, at *5 (E.D. Pa.

Sept. 30, 2019) (“When a plaintiff alleges some facts satisfying joint employer theory factors, even

where there is a ‘thin’ factual record, . . . [the] pleading survives dismissal.”) (footnote omitted);

Anderson v. Finley Catering Co., 218 F. Supp. 3d 417, 422 (E.D. Pa. 2016) (denying a motion to

dismiss plaintiff’s joint-employer theory because “discovery is often necessary . . . [to] define the

contours of the employment relationship”).

7 Racial discrimination claims under § 1981, Title VII and the PHRA all involve the same

analysis. See Brown v. J. Kaz, Inc., 581 F.3d 175, 182 (3d Cir. 2009) (“[T]he substantive elements of

a claim under § 1981 are generally identical to the claims of an employment discrimination claim

to “discriminate against any individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such individual’s race.” 42 U.S.C.

§ 2000e-2(a)(1). To state a claim for intentional discrimination under Title VII, Tysh

must allege she (1) was a member of a protected class, (2) was qualified for the position,

(3) suffered an adverse employment action and (4) the adverse action occurred under

circumstances giving rise to an inference of intentional discrimination. See Summers v.

Child.’s Hosp. of Phila., No. 21-3479, 2022 WL 4120283, at *5 (E.D. Pa. Sept. 9, 2022)

(quoting Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008)).

An inference of discrimination can arise “in various ways, including by alleging

that similarly situated comparators were treated more favorably by their employer,

similar racial discrimination against other employees, or direct evidence of racial

animus such as discriminatory statements allegedly made by supervisors.” Riley v.

Borough of Eddystone, No. 24-1835, 2024 WL 4137310, at *3 (E.D. Pa. Sept. 10, 2024)

(citing Golod v. Bank of Am. Corp., 403 F. App’x 699, 703 n.2 (3d Cir. 2010)). A plaintiff

can also raise an inference of discrimination by alleging that she was replaced by an

individual outside of their protected class. Id. (citing Johnson v. Keebler-Sunshine

Biscuits, Inc., 214 F. App’x 239, 242 (3d Cir. 2007)).

The Complaint contains no allegations about comparators, discrimination

against other employees, discriminatory statements or actions by supervisors, nor any

other facts raising a plausible inference of intentional discrimination against Tysh

specifically or Ukranians generally. Tysh instead asserts “upon information and belief,

[she] was replaced by an individual who was of a different race than [her], or in the

under Title VII.”); Gomez v. Allegheny Health Servs., Inc., 71 F.3d 1079, 1083–84 (3d Cir. 1995)

(noting that the PHRA and Title VII are interpreted similarly).

alternative the position remained open,” see (Compl. ¶¶ 70, 83, 125), but the Court does

not credit such conclusory allegations. See Riley, 2024 WL 4137310, at *3 (holding a

similar statement was insufficient to raise an inference of discrimination under Title

VII); Wright v. Providence Care Ctr., LLC, No. 17-747, 2017 WL 6059679, at *7 (W.D.

Pa. Dec. 7, 2017) (same for § 1981).

V

In Counts IV and VII, Tysh alleges sex discrimination under Title VII and the

PHRA. Intentional sex discrimination requires the same four elements as intentional

racial discrimination. See supra Part IV; Mandel v. M & Q Packaging Corp., 706 F.3d

157, 169 (3d Cir. 2013). The Complaint again fails to allege facts that could show Tysh

was discriminated against because she is female. Her purported allegations of

discrimination are entirely conclusory and insufficient to survive a motion to dismiss.

Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).

VI

In Count V, Tysh alleges age discrimination under the PHRA. The PHRA “does

not protect individuals who neither reside nor work in Pennsylvania.” Blackman v.

Lincoln Nat’l Corp., No. 10-6946, 2012 WL 6151732, at *5 (E.D. Pa. Dec. 10, 2012). The

plaintiff’s workplace, and not the location of the defendant’s corporate headquarters or

principal place of business, is “[t]he relevant location [] with regard to the PHRA.”

Taylor v. Rodale, Inc., No. 4-799, 2004 WL 1196145, at *3 (E.D. Pa. May 27, 2004);

Blackman, 2012 WL 6151732, at *6.8

8 Tysh argues the PHRA applies to her because Elemica has “principal places of business in

Pennsylvania.” (Pl.’s Br. in Opp’n at 15, Dkt. No. 24.) At least two courts have rejected this

argument. Blackman, 2012 WL 6151732, at *6 (citing Taylor, 2004 WL 1196145, at *9).

The PHRA is generally interpreted in accord with its federal counterparts, see

Kelly, 94 F.3d at 105, which reflect the “well-established presumption against

extraterritorial application of statutes.” Blackman, 2012 WL 6151732, at *4. The

PHRA itself embodies that presumption by focusing on “the people of the

Commonwealth.” 43 Pa. Stat. & Cons. Stat. Ann. § 952(a), (c). Limiting the PHRA to

Pennsylvania residents and workers conforms with the holdings of “an overwhelming

majority” of courts “that have addressed the jurisdictional reach of . . . state

anti-discrimination laws.” Blackman, 2012 WL 6151732, at *6.

Tysh does not state where she allegedly resided during the operative time

frames. The Complaint sounds in the past tense, alleging that Tysh “has resided in this

judicial district.” (Compl. ¶ 9.) And Tysh concedes that she “temporar[ily] relocate[ed]

overseas” and “worked remotely,” (Id. ¶¶ 18–19), but never verifies that she returned.

Tysh appears to believe, incorrectly, that because she has resided in

Pennsylvania in the past, the PHRA must apply to her in the present. Not so. The

PHRA applies to “the inhabitants of” the Commonwealth, and “inhabit” means “to dwell

in” or “to occupy permanently or habitually as a residence.” Blackman, 2012 WL

6151732, at *3 (quotation marks and citations omitted). That definition speaks in the

present tense. Having “resided” in the Commonwealth previously does not grant Tysh

a roaming license to claim it as her permanent or habitual residence when it’s

convenient. Cf. Jackson v. United Airlines, Inc., 32 F. Supp. 3d 557, 565 n.9 (E.D. Pa.

2014) (allowing a PHRA claim to proceed because the plaintiff “is a resident of

Pennsylvania and was so during the relevant time period”).9

9 Elemica also suggests Tysh’s PHRA claim must be dismissed because she does not fit into the

“two classes of independent contractors” the PHRA protects. (Def.’s Mem. of L. in Supp. at 8, Dkt.

VII

In Count VIII, Tysh alleges Elemica violated the Pennsylvania Whistleblower

Law, which applies to an “[e]mployer,” defined as a “[p]ublic body.”10 43 Pa. Stat. &

Cons. Stat. Ann. §§ 1422–23. A “[p]ublic body” is “[a]ny other body which is created by

Commonwealth or political subdivision authority or which is funded in any amount by

or through Commonwealth or political subdivision authority or a member or employee

of that body.” Id. § 1422. In the statute, “funded by or through” refers to money

“specifically appropriated by a governmental unit,” meaning that “a private entity does

not qualify as a public body merely because it receives state funds through contracts

with public programs or government agencies.” Lomaskin v. Siemens Med. Sols. USA,

Inc., 820 F. App’x 138, 141 (3d Cir. 2020) (quoting and citing Grim v. May Grant

Assocs., No. 18-2231, 2019 WL 358520, at *4 (E.D. Pa. Jan. 29, 2019)). The Complaint

here fails to allege facts that could show that Elemica is a “public body.”

VIII

Courts should freely give leave to amend a complaint “when justice so requires.”

Fed. R. Civ. P. 15(a)(2). This rule expresses “a preference for liberally granting leave to

amend” unless “amendment would cause undue delay or prejudice, or that amendment

would be futile.” Oran v. Stafford, 226 F.3d 275, 291 (3d Cir. 2000). Tysh may amend

No. 18-1.) That argument presupposes that Tysh is an independent contractor and not an employee,

again, an issue the Court cannot yet resolve.

10 An “[e]mployer” also covers an “individual,” “partnership,” “association,” “corporation for

profit,” or “corporation not for profit” that “receives money from a public body to perform work or

provide services relative to the performance of work for or the provision of services to a public body.”

43 Pa. Stat. & Cons. Stat. Ann. § 1422. Tysh does not allege that Elemica qualifies as such.

Counts II through VIII consistent with this Memorandum and to the extent she can

allege facts sufficient to state a plausible claim for relief.

An appropriate Order follows.

BY THE COURT:

/s/ Gerald J. Pappert

Gerald J. Pappert, J.