plausible inference of discrimination and that's precisely what the complaint here doctor team has alleged that he was seven years old that he was well qualified for his job that he was performing adequately that he was nevertheless terminated for nonperformance reasons told only vaguely that you can see we wanted to quote move in a different direction and then that is it was replaced by dr john hunter who is a context here where all of these are the facts provide a factual background for stating that the these individuals are significantly younger that's getting a it's not just the mere recitation of legal requirements that's giving it a qualitative assessment of the relevant age difference that a judge using common sense and judicial experience is able to use to determine whether or not the it in your analysis that both of the compare is were actually identified by name is that well it's extremely important your honor be to the extent that it gives notice of the  full stop it's aiding here would be the comparison and they are significantly younger i may not know how much younger but i can tell you that they are significantly over the the defendant wouldn't know how much younger right exactly that's precisely right and also it goes to show that to somebody who's to judge who's assessing the factual record it goes to show that judge that i mean not have that information l down but there is a reasonable expectation that once the discovery process begins i will be able to get a hold of that information that will provide evidence that supports this aspect of life so it's not a matter of speculation in any way it's a matter plausibly giving rise to to that inference and without anything more than what even even to even if we accept that something like significantly younger depending on the context could be a factual description or it could be illegal conversion and in this context where we want to have more than speculation and more than mere possibility why did way shouldn't there be some requirement  what a plaintiff who knows that there are these significantly younger people but they don't have access to that information it's hard to know how they could in that case clete i mean i suppose they could start speculating as to the supreme court held in erickson regarding whether the individual was being substantially harmed in both cases that the court did not require any additional factual support  refute legitimate not discriminatory explanations i mean there's there's some moving parts here in the way that trial and it all interact with circumcision  douglas and i don't know if you've spoken to that if the government has a position i'd be interested to hear it yeah we i mean that wasn't really an issue in this case your honor so we haven't briefed that specific point but the in that case doesn't need to be established in a complaint i think both of those certainly to survive  morning your honour's may it please the court when you miss tracy greenberg and i will be arguing today on behalf of the appellant doctors out for you now martinez this case presents the issue of whether martinez presently seventy one year old physician has sufficiently played claims for age discrimination under the age discrimination and employment act and the pennsylvania human relations act and specifically at issue is the th purana the prime aphasia case where there martinez has specific circumstances giving subsequent failure to rehire him and stand hire dr jarvis after he applied for the position three separate times martinez asserts here that the district court's dismissal of his case based on the assertion that the st amended complaint  did not contain any factual allegations relative to the specific age of the compare tours was around and there is no hard and fast rule that requires a plane after to allege the age of as compared to ours to satisfy the  not the old lady but it's called well if we determine that this was a legal conclusion you have anything else in the complaint that would push the claim for possible sure your honor  f there have been he says where a court has found that an adverse job action and when they address job action is a terminations a plaintiff can satisfy that fortran simply by showing that there was a continue need for someone to perform his job after he left this court came to that conclusion and versus p a power and light and also more recently actually  prior to that there was a another district court reporter versus chamakh the middle district came to that conclusion in that case the district court reasoned that an inference of discrimination is raised when an employer rejects an otherwise qualified protected class employment candidate and thereafter does not eliminate the possession the court in that case stated that evidence of the seeking or the hiring of placement to fill position vacated by a discharge  is a member of a group which has historically suffered discriminatory treatment is by itself sufficient to satisfy the th element of the crime of case and the reasoning for that is basically that it's facially illogical for an employer to randomly fire and otherwise qualified employee and incur it's a terrible expense and loss of productivity associated with hiring and training placement and we allege here that martinez is complaint opposed to the specificity of pleading that the position remained open and he wasn't rehired when his case does in fact hang on the fact that her work compared with their wire that you know you know falling his terminations someone had to perform his job and i think that it's important to look at the facts that we played in this case specifically that before his terminations the employer came to ham and discussed with him you know what additional information what additional tools or resources he might need to perform his job in the future basically he also played that at the time of his determination and he had a full calendar of his term a nation had nothing to do with his performance and he was just given a vague statement that you know we're moving in another direction and i think in light of the cases i earlier mentioned  can come to it a conclusion it's plausible to believe that there was some invidious reason for letting him go and putting somebody else in that role i just want to make sure they don't understand your answer in relation to my question court to reach questions about the specificity of pleading as to the age were the qualifications of particular compared sure well according to those cases you know the mere fact that  there was a continued need for the position and that you know the job didn't go away that in and of itself in those cases why is sufficient to establish the crime official at the pleading stage you know on so right judgment with that maybe a different story but in terms of pleading certainly you know we take the position that that is sufficient and you know this court has articulated the need  flexibility when you know evaluating a crime face a case and you know there's different ways to establish those elements not just you know as the district court ruled c has argued in the district court agreed that dr hunter could not have replaced martinez subsequent to his term nation because his specialty is a podiatrist and not an orthopedic and an orthopedic surgeon cannot are not the same cannot be considered art tours but you know when you're looking at what an orthopedic surgeon is he performs medical treatment on foot ankle leg issues and podiatrists do the same so you know if we can establish that at least a portion of his duties were assumed by dr hunter i think that that the district court actually did here because i think it followed the law that that it had in front of it which was a number of court cases in the middle district that found similar circumstances where a plaintiff did is the difference between a plaintiff who has the power to put whatever he or she may desire in the complaint and providing that factual material to the geog for the judge to make a decision about whether or not there is a significantly younger compared or and making that decision for the judge in pleading in as a legal totally mr white yes so the purpose of pleading with specificity is enough to put the defendant on notice as to how the fat now we don't expect an employee he has the ages so all of us coerced the employer are almost always dots why is it not enough to say to name compare or as you're say this person is younger and then the defendant can dispute these matters or other things why why is the burden on the plate to articulate the particular age of each one but that factual statement you might make about a lot of people your honor a couple reasons one i can i can say that the court although non presidential opinion the rd circuit previously did come to that conclusion ok i'm not binding on us why should we not persuade much so so when when a plaintiff as a plaintiff did here decided that the case that that he was going to plead that was plausible was based upon that conclusion that the person was significantly younger i think it's on the burden of the plaintiff to describe with any specificity it doesn't have to be i know they gave the name of the computer but with any specificity for the  age of the compared or whether it's ten years his junior twenty years his junior believed to be in his forty's or thirty's and really it was your client on notice as to who what's in play here right and that's what the rules require exact allegation is there any basis for saying that would be legal if it's eight years younger but didn't specify how many years or what the birth while you're on your own i think even specifying years younger is better than saying significantly younger because we're talking about giving the complaints some factual material for the judge to make the decision of whether or not it's plausible if it's five years younger more than five years younger more than ten years younger in his forty's in his thirty's and anything in the court the district court here said look i don't have anything all i have is that label and i don't think that that labels enough and we you know we challenge this this issue and we brought  up the fact that we believe there had to be some factual material that come in the initial complaint the plaintiff amended their complaint and and did the same thing chose not to put anything i can tell your honor you know i i i do and i ha filed plaintiff ages from an asian cases before and in those cases when i pleaded complain i am i am always cognizant of the fact that there may be a plausibility challenge and i have plenty that believe it to be in his fort to provide the court with something the room federal civil procedure or a notice pleading system the point is to put people on notice you don't dispute that almost always the employer is going have access to age as the employee is not going to well your honor the the employer he believes in as was the case in this case that he was discriminated against based on age how he came to that decision and decided to file a federal court case has to be dependent upon some factual material in this case we're looking at circumstantial evidence not direct evidence of discrimination most of these are circumstantial cases so you seem to concede that if it just to be clear i'm not conceding that years younger would be enough to plead a plausible claim i'm just saying that that would be more than what they put in there doesn't seem to be a factual allegation years younger would be a factual allegation i don't know that it would be specific  h because it were just talking about it be a legal obligation if we're talking about years younger i would assume then that they're saying at least two years younger and then is that a fact is that a fact or is that a legal issue to say two years younger if they if they plan of play it in their complaint that there that the individual compared or was at least two years younger than i think that that would be a fact that at least the court can make the decision about whether  plausible claim thank you can we infer if someone played significantly younger the person a saying on the information belief i think this person is a couple of years younger it's not i don't believe we can your honor because if if someone says significantly younger than matrix what should the complaint the complaint if mr if dr martinez believed that that that dr hunter was in his thirty's then it should say believed to be in his thirty's or believed to be in his forty's if if the complaint if the plan if you believe that dr jarvis was in his forty's or is it has been easier to six these you know it could be any there i mean it could be any number of ways to communicate i don't know with certainty but i know it's a lot and  why isn't a lot enough i mean is this just semantics where perhaps perhaps you know it it may be just coincidentally that significantly appears in case law but even colloquially when people talk about somebody being a saying is that there has to be some facts in the complaint for the court to come to that conclusion i have you know our position here and i think it's consistent with what the case is at least that the judge grand was looking at when he made this decision with this court you know ruling on in color that that's been the case that he cited in his decision that there has to be some factual material for the court to make that decision and there wasn't in this complaint so he  you know this case is concerned i think that it ball you know affirmed that tuam bully and the plausibility standard applies to all civil actions and across the board it doesn't matter aphasia case of being replaced by a younger compared or so i think that the court when it when it looked at this complain and shouted of its of its legal conclusions it said what facts and i left with i think that i don't think that that question was ever us and i you know i think that the court in this case you know reached the right conclusion and look at the complaint front of you to put your client on notice what the issue was well it didn't i think there that's a little bit that my my response is that it didn't plead a plausible claim and that's what we challenged though what i'm asking you did it put your client on notice it's a pretty straightforward question your client knew the ages of the other guys did it let your client on knows where you  are i don't think that we can you know if we're we're not allowed to bring in any facts beyond the scope of the complaint when we're challenging you guys just asking a simple yes or no question to put your client on notice i guess that my question is on notice of what  representation that may be inaccurate when all they can tell from there whether able to see and know otherwise know is this person is younger than  i i think that when like we have here where where dr martinez believed that he was subject age discrimination based on the replacement age of the individuals i think that he has to have some observations about what their ages and i think that i think the obligation is on him to plead the plausible claim and for him to decide what he's going to put in the complaint relative those ages i don't think it just like a crime a face a case is not a cookie  cutter exercise it can be based on the facts of the case i think that it's up to the plaintiff their side under no circumstances what to include in the complaint it's just that there are you know it's not it's not that the wrong material was included here it's just that there wasn't any fact in the complain about the age and i think that then it's up for up to the to the district court judge to actually make the decision about whether or not that's a set that is or that's a plausible claim if challenge on twelve owner i don't think that that was raised at the at before the district court i would you know our position on that would be that it is waived but if we look at the complaint itself i mean the paragraphs twenty through twenty two are where the the plaintiff summarizes you know what is the basis of these claims and the basis of the claims are i was or dr hot excuse me dr martinez saying that he was replaced by a younger individual and that's why there was a discrimination that he was passed out for a job and the job went to a younger individual and that's why there was a discrimination so you know we were we have course we're we're challenging the complaint does as it was constructed and we saw those as being the grabbing end of the complaint and i think that the district judge did as well so you know that's a decision that it that judge brinn came to and i don't think that we got into the alternative theories as who it's his belief that was a lot younger your honor i think that that the way the complaint was constructed it didn't actually make the connection between a new position being advertised and that being dr martinez's position as remaining open it was that there was an opening for an orthopedic surgery position at you where hanna which is a health system and exceeded time because you're briefly address i gather you are also asking us to will that it's not enough to allege that someone is has been hired into the same  position or that they are less qualified but there needs to be specificity as to the relative qualifications of a proposed compared or again what what is the specificity beyond being less qualified or merely that they were being younger and hired into this position sure your honor so that the the amended complaint did not component it there's nothing in it he all he did was remark that the compared or was missed or the comparative specialties was missing it i think that the thrust of the district court's opinion here was really focused on the lack of the age now we did surgeon we think that that's another that's another component of the fact that this is not a plausible claim but i don't think that that's that's a necessary determination for this court i think that the court can look at this complaint and and see that it does in fact not have the specialties alleged but i don't think that that's a that's necessary thing just the fact that there's lacking facts factual material to the aged is enough for the court to affirm thank shepherd you know ray from the th circuit and half get from a circuit in each of those the identity of the comparer wasn't alleged specifically but that was considered to be enough to survive twenty six but again it just doesn't turn on that because here the identities of their competitors was alleged pacific with their name so even if you know in the abstract an employer might say they are given fair notice with computers were without that information here or it's very clear that it have noticed exactly what based on i also just want to push back on this idea that guesswork is required  know published circuit court decision saying that you do need that sort of specificity as your honour's have all i think mentioned it is not to say sufficiently younger substantially younger qualifications well your honor we didn't because that was not a an issue that was an issue in this case at least in that district court we didn't brief that particular issue but again i would point the court to