In Cline v. Clinical Perfusion Systems, Inc., No. 22-5107, 2024 WL 501616 (10th Cir. Feb. 9, 2024), the U.S. Court of Appeals for the Tenth Circuit, inter alia, held that the plaintiff sufficiently alleged age discrimination, and thus reversed a district court’s dismissal.
From the decision:
The district court erred by concluding that the FAC [first amended complaint] failed to allege sufficiently that age was a but-for cause of Cline’s termination. Cline was entitled under Federal Rule of Civil Procedure 8(d) to plead inconsistent legal theories and inconsistent facts. Roe, 913 F.3d at 1300 n.21; see Cella v. MobiChord, Inc., No. 2:17-CV-527-TC, 2020 WL 416668, at *10 (D. Utah Jan. 27, 2020) (unreported) (citing Roe and finding plaintiff was entitled to plead inconsistent motivations for termination). Therefore, the allegations in the FAC that Cline was terminated because of his disability do not prevent Cline from alternatively alleging that he was terminated because of his age.
We conclude that Cline’s FAC plausibly alleged that “age was the factor that made a difference” in his termination. Jones, 617 F.3d at 1277 (quoting Wilkerson, 606 F.3d at 1266). Cline alleged that “the sole factor, the primary factor, the determinative or determining factor, or a significant motivating factor in making [appellee’s] decision to terminate Cline and its decision not to reinstate or rehire him was … (5) the fact that Cline was sixty-one (61) years old at the time the decisions were made.” (Aplt. App. 16 ¶ 57). While this is a conclusory statement, Cline supported his causation argument with sufficient factual allegations.
First, Cline alleged that the reason given by Clinical Perfusion Systems for his termination—the business’s financial condition—was false. (Id. at 9 ¶ 26, 17 ¶ 60); see Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (“Proof that the defendant’s explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive.”). Second, Cline alleged that around the time when appellee made the decision to terminate him, appellee was in the process of hiring two younger, less qualified perfusionists to replace Cline. (Id. at 16-17 ¶¶ 58-60).
The court concluded that “[t]his factual allegation supports the inference that Clinical Perfusion Systems’ proffered reason for terminating Cline was false, and that Cline’s age was the actual reason for his termination” and that “[t]hese allegations are sufficient to plausibly allege that Cline’s age was a but-for cause of his termination.”
In support, the court cited the cases of Martinez v. UPMC Susquehanna, 986 F.3d 261, 267-68 (3d Cir. 2021) (which it characterized as “holding plaintiff stated ADEA claim when complaint alleged he was fired, he was replaced by younger, less qualified employees, and his employer suspiciously told him he was not fired for performance-based reasons”) and Leal v. McHugh, 731 F.3d 405, 413 (5th Cir. 2013) (which it characterized as “holding plaintiffs stated ADEA claim when complaint alleged they were qualified for position, a substantially younger person was given the position, and an official with decision-making authority said department needed ‘new blood'”).