Garcia vs. Flagship Post Acute, LLC

# Case Name Tentative 49 Garcia vs. Flagship Post Acute, LLC

25-01517732 Motion to Compel Arbitration

Defendants Flagship Post Acute, LLC dba Pelican Ridge Post Acute (“Pelican Ridge Post Acute”) and Lawrence Talebi’s motion to compel Plaintiff Dannise Garcia to arbitrate the controversy alleged in Plaintiff’s Complaint is GRANTED. The case is ordered STAYED pending completion of arbitration as to the entire action. To the extent Plaintiff seeks to strike the declarations of Defendant Lawrence Talebi (ROA 93), the request is DENIED.

As an initial matter, a meet and confer is not required to bring the instant motion to compel arbitration. Plaintiff asserts that there is a statutory requirement to meet and confer prior to filing a motion to compel arbitration and cites to Local Rule 315 and Code of Civil Procedure sections 2016.040 and 2023.020 in support of this contention.

Local Rule 315 requires the parties to meet and confer to: (1) discuss the presently available facts which support the allegations in each party’s pleadings; (2) discuss possible settlement of the action including possible arbitration; and (3) exchange preliminary schedules of discovery. (Local Rules – Superior Court of California, County of Orange, rule 315.) It is the plaintiff’s responsibility to arrange the conference and to prepare the joint Meet and Confer Statement. (Id.) A failure to comply may result in sanctions. (Id.) A meet and confer is not a prerequisite to filing a motion to compel arbitration under Local Rule 315.

Code of Civil Procedure section 2016.040 concern the for a meet and confer declaration for discovery motions while section 2023.020 addresses the sanctions for failing to meet and confer in connection with a discovery motion.

The Arbitration Provision

This motion is brought pursuant to MUTUAL AGREEMENT TO ARBITRATE CLAIMS (“Arbitration Agreement”) dated 2/2/2022. The arbitration agreement reads, in part:

1. Claims Covered by this Agreement. To the maximum extent allowed by law, the Company and I (collectively referred to as '”the parties”) mutually consent to the resolution by arbitration of all claims or causes of action, except as provided in Paragraph 2 below, that the Company may have against me or that I may have against the Company or the Company’s agents, owners, shareholders, current and former officers and directors, current and former employees, parent, subsidiary and affiliated entities, all benefit plans, the benefit plans’ sponsors, fiduciaries, administrators, affiliates, and all successors and assigns of any of them.

The claims covered by this Agreement include, but are not limited to: claims for breach of any contract or covenant (express or implied); tort claims; disputes with respect to compensation, wages, and benefits (except where an employee benefit or retirement plan specifies that its claims procedures shall culminate in an arbitration procedure different from this); claims for discrimination or harassment (including, but not limited to, race, sex, religion, national origin, ancestry, age, marital status, military or veteran’s status, medical condition, genetic information, gender identity or expression, pregnancy, mental or physical disability, or sexual orientation); claims for retaliation; claims for violation of public policy; and claims for violation of any federal, state, or other law, statute, regulation or ordinance including, but not limited to, all claims arising under Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act of 1967, the Equal Pay Act, the Americans with Disabilities Act, the California Fair Employment & Housing Act, the Family and Medical Leave Act, the California Family Rights Act, the California Labor Code, the Fair Labor Standards Act, and all similar federal and state statutes or local ordinances.

(Talebi Decl. ¶ 10, Exh. A, Sec. 1.)

Existence of an Arbitration Agreement

The FAA governs this motion. The FAA applies to contracts “evidencing a transaction involving commerce.” (9 U.S.C. § 2.) The Arbitration Agreement affects interstate commerce because Pelican Ridge Post Acute participates in federally funded healthcare programs, such as Medicare and Medi-Cal. (Willis v. Prime Healthcare Services, Inc. (2014) 231 Cal.App.4th 615, 626 [“Payments of Medicare or Medicaid funds are transactions involving commerce.”]; United States v. Girod (2011) 646 F.3d 304, 315 [“... Medicaid ... is a federally funded program that indisputably affects interstate commerce.”].) Additionally, the Arbitration Agreement provides that it is “subject to and governed by the Federal Arbitration Act.” (Talebi Decl. ¶ 10, Exh. A, Sec. 5 [ROA 16].)

The FAA states that written arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” (9 U.S.C. § 2.) The United States Supreme Court has described this provision as reflecting both a “liberal federal policy favoring arbitration,” and the “fundamental principle that arbitration is a matter of contract.” (AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 339.)

The FAA permits agreements to arbitrate to be invalidated by “generally applicable contract defenses, such as fraud, duress, or unconscionability.” (Concepcion, supra, 563 U.S. at p. 339.) When deciding whether a valid arbitration agreement exists, courts generally apply “ordinary state-law principles that govern the formation of contracts.” (First Options of Chicago, Inc. v. Kaplan (1995) 514 U.S. 938, 944.) “[T]he party resisting arbitration bears the burden of proving that the claims at issue are unsuitable for arbitration.” (Green Tree Fin. Corp. v. Randolph (2000) 531 U.S. 79, 91.)

A party moving to compel arbitration bears an initial burden of producing “prima facie evidence of a written agreement to arbitrate the controversy.” (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165–166.) The moving party “can meet its initial burden by attaching to the [motion or] petition a copy of the arbitration agreement purporting to bear the [opposing party’s] signature.” (Bannister v. Marinidence Opco, LLC (2021) 64 Cal.App.5th 541; see also Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1060 [holding same].)

For this step, “it is not necessary to follow the normal procedures of document authentication.” (Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 218.) If the moving party meets its initial prima facie burden and the opposing party does not dispute the existence of the arbitration agreement, then nothing more is required for the moving party to meet its burden of persuasion.

Defendants met their initial burden of producing “prima facie evidence” of the existence of the subject arbitration agreement by providing a copy of the Arbitration Agreement and authenticating it. (Talebi Decl. ¶ 10, Exh. A.) Defendants also produced the declaration of Lawrence Talebi, the Administrator at Pelican Ridge Post Acute. (Talebi Decl. ¶ 2.) Talebi declares Pelican Ridge Post Acute’s Arbitration Agreement is one of the documents included in Pelican Ridge Post Acute’s new hire packet and provided to newly hired employees. (Id. at ¶ 4.)

It is standard practice for newly hired staff to receive a copy of the Arbitration Agreement in their new hire packet. (Id.) It is Pelican Ridge Post Acute’s procedure to have each new employee attend an orientation session. (Id. at ¶ 5.) During the orientation session, each document in the new hire packet, including the Arbitration Agreement, is thoroughly reviewed. (Id.) When the employees return the new hire paperwork, Pelican Ridge Post Acute verifies that there are complete copies of the required documents, including Arbitration Agreement, in the returned new hire packet. (Id. at ¶ 6.)

The documents are also reviewed for employee information and signatures. (Id.) Talebi was present at Plaintiff’s new hire orientation on or about February 2, 2022 and is aware that Plaintiff received Pelican Ridge Post Acute’s new hire packet, including the Arbitration Agreement. Plaintiff signed the Arbitration Agreement on February 2, 2022. (Id. at ¶ 8.) Plaintiff did not ask Talebi any questions or voice any concerns about the Arbitration Agreement prior to signing it. (Id.) Talebi reviewed Plaintiff’s Arbitration Agreement and also signed the Arbitration Agreement on February 2, 2022. (Id. at ¶ 9.)

Validity of the Arbitration Agreement

The FAA provides, in relevant part, “[a] written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract ....” (9 U.S.C. § 2; see Rent-A- Center, West, Inc. v. Jackson (2010) 561 U.S. 63, 70 [an arbitration agreement “is valid under § 2 [of the FAA] ‘save upon such grounds as exist at law or in equity for the revocation of any contract’ ”].)

Signed Arbitration Agreement

Because Defendants produced prima facie evidence of a written agreement to arbitrate, Plaintiff bears the “burden of producing evidence to challenge the authenticity of the agreement. [Citation.] The opposing party can do this in several ways. For example, the opposing party may testify under oath or declare under penalty of perjury that the party never saw or does not remember seeing the agreement, or that the party never signed or does not remember signing the agreement. [Citations.]” (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165.)

Plaintiff declares that she did not receive a copy of the Arbitration Agreement as a new hire or at any time during her employment with Defendants. (Garcia Decl. ¶¶ 3-4.) Plaintiff further declares that she did not receive a copy of the Arbitration Agreement at any time during the orientation. (Id. at ¶ 6.) Plaintiff asserts that the prior Director of Staffing, Sindul Aguilar, provided Plaintiff with the new hire packet and that Talebi was not present at Plaintiff’s new hire orientation. (Id. ¶¶ 8- 10.)

Plaintiff’s new hire packet did not include an Arbitration Agreement. (Id. at ¶¶ 7, 9.) Plaintiff returned the new hire packet to Aguilar, not Talebi. (Id. ¶¶ 7, 11.) Plaintiff never signed an Arbitration Agreement. (Id. ¶ 12.) Plaintiff declares that the signature on the Arbitration Agreement is not her signature and that Plaintiff’s Driver’s License and Workers’ Compensation claim forms reflect her signature. (Id. at ¶ 13.)

Plaintiff states that the complete employee files had to be re-done when Plaintiff replaced Aguilar as Director of Staffing in May 2022. (Garcia Decl. ¶ 14.) Arbitration files were included. (Id.) Defendants did not explain the Arbitration Agreements. (Id.) Plaintiff reviewed her employment file on or about June 4, 2024 and there was no Arbitration Agreement. Plaintiff declares that she witnessed Talebi sign Arbitration Agreements for other employees without their consent outside of the new hire orientation. (Id. at ¶ 18.)

Plaintiff also submitted the declarations of Gabriela Aguirre Lopez and Jair J. Barrantes. (ROA 68.) Lopez declares that she signed general application documents with Payroll and did not sign an arbitration agreement. (Lopez Decl. ¶ 4.) Barrantes declares that he signed general application documents with “Sindol” and does not recall signing an arbitration agreement being discussed by either Sindol or Lawrence. (Barrantes Decl. ¶ 4.) Neither Lopez nor Barrantes declare that they were present at Plaintiff’s new hire orientation or provide any other evidence in connection with whether a valid Arbitration Agreement exists between Plaintiff and Defendants. (See generally Lopez Decl. and Barrantes Decl.)

Plaintiff has met her burden of producing evidence. Thus, Defendants must establish with admissible evidence a valid arbitration agreement between the parties. The burden of proving the agreement by a preponderance of the evidence remains with the moving party. (Gamboa, supra, 72 Cal.App.5th at pp. 165–166.)

In response to Plaintiff’s declaration, Talebi submitted a Reply declaration. (ROA 89.) Talebi declares that the new hire packet presented to newly hired employees includes the Arbitration Agreement, an Employee Handbook Acknowledgment, and a Job Description Acknowledgment. (Talebi Reply Decl. ¶ 6.) Attached as Exhibit “B” to Talebi’s Reply declaration are Plaintiff’s executed Employee Handbook Acknowledgment and Licensed Vocational Nurse (LVN) Job Description Acknowledgement, both dated February 2, 2022. (Id. ¶ 7, Exh. B.)

In deciding whether to compel arbitration, “the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court’s discretion, to reach a final determination.” (Engalla, supra, 15 Cal.4th at p. 972.)

Defendants have produced contemporaneous examples of Plaintiff’s signature as follows: (1) the Employee Handbook Acknowledgment signed by Plaintiff and dated February 2, 2022; and (2) the Licensed Vocational Nurse (LVN) Job Description also signed on February 2, 2022. (Ex. B attached to Talebi Reply Decl. ¶ 6 [ROA 89].) Plaintiff acknowledges that she received and returned the new hire packet. (Garcia Decl. ¶¶ 7, 9.) Therefore, the signatures on the Employee Handbook and the LVN Job Description are probative to show Plaintiff’s signature in 2022. The Court compared the signatures on the Arbitration Agreement signed on February 2, 2022, to the signatures on the Employee Handbook Acknowledgment and the LVN Job Description also signed on February 2, 2022. The Cour finds that the signatures appear to be the same on the three documents.

Although Plaintiff declares that the signature on the Arbitration Agreement is not her signature, Plaintiff has not provided the Driver’s License and Workers’ Compensation claim forms or any other official governmental documents that reflect her signature. Thus, there is no evidence to corroborate Plaintiff’s position that Flagship Post Acute employees forged Plaintiff’s signature on the Arbitration Agreement. The Court also notes that Plaintiff’s signature on her declaration attached to the Opposition looks small and smudged. For this reason, it is not probative evidence of Plaintiff’s true signature in 2022. Accordingly, Defendants have established the existence of a written arbitration agreement between the parties by a preponderance of the evidence.

Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021

Congress amended the FAA in 2022 by adopting the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (“EFAA”), which provides that subject to the plaintiff’s election, “no predispute arbitration agreement ... shall be valid or enforceable with respect to a case which ... relates to [a] sexual assault dispute or [a] sexual harassment dispute.” (9 U.S.C. § 402, subd. (a).) A “ ‘sexual assault dispute’ ” is “a dispute involving a nonconsensual sexual act or sexual contact ....” (9 U.S.C. § 401, subd. (3).) And a “ ‘sexual harassment dispute’ ” is “a dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law.”(9 U.S.C. § 401, subd. (4).) California law contains no similar exception.

“In general terms, the EFAA renders arbitration agreements unenforceable at the plaintiff’s election in sexual assault and sexual harassment cases that arise or accrue on or after March 3, 2022, the EFAA’s effective date.” (Doe v. Second Street Corp. (2024) 105 Cal.App.5th 552, 559.)

Defendants contend the EFAA is inapplicable because Plaintiff failed to adequately state a claim for sexual harassment. California courts have recently converged on a plausibility standard for determining whether a complaint adequately states a sexual harassment claim for EFAA purposes. In Quilala v. Securitas Sec. Servs. USA, Inc. (2025) 117 Cal. App. 5th 75, the First District Court of Appeal held that the trial court correctly determined that the plaintiff’s allegations "stated a plausible claim of sexual harassment under FEHA, bringing the dispute within the scope of the EFAA."

In Decloedt v. Radnet Mgmt., Inc. (2026) 346 Cal. Rptr. 3d 45, the Second District Court of Appeal expressly applied the federal Rule 12(b)(6) framework, requiring that the complaint "must contain sufficient factual matter, accepted as true, to ’state a claim to relief that is plausible on its face.’" “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. [Citation.]

The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” (Ashcroft v. Iqbal (2009) 556 U.S. 662, 678.) Here, the Complaint alleges Plaintiff was harassed and discriminated against, in part, due to her race, nationality, and age. Specifically, the Complaint alleges employees who were Filipino, Indonesian, or other races were favored with treatment that was respectful, were fairly paid, and were provided with rest and meal periods while Plaintiff, who is Hispanic, was not. (Compl. ¶¶ 9L, 10L, 16L, 22L, 28L, 29L, 35L, 41L, 47L, 57L, 63L, 77L, 86L, 94L, 97L, 98L.)

Plaintiff was replaced with a younger employee of a different nationality and race than Plaintiff. (Id.) Although the Complaint alleges there is “overwhelming evidence of [Plaintiff’s employer’s] sexual harassment” (id. at ¶¶ 41, 47, 53, 53M, 63, 73, 98), the Complaint fails to allege any facts to support the conclusory statements that Plaintiff was sexually harassed. Accordingly, the complaint cannot be reasonably construed to allege sexual harassment under the plausibility standard applied in Decloedt.

For these reasons, the Arbitration Agreement is not subject to the EFAA.

Waiver

“[W]aiver of an arbitration agreement governed by the FAA is evaluated under federal rather than state law. [Citations.]” (Dardashty v. Hyundai Motor America (C.D. Cal. 2024) 745 F.Supp.3d 986, 998; see also Morgan v. Sundance, Inc. (2022) 596 U.S. 411, 417 [assuming without deciding that the Courts of Appeals resolving questions of waiver as a matter of federal law are “right to do so”].) “[T]he test for waiver of the right to compel arbitration consists of two elements: (1) knowledge of an existing right to compel arbitration; and (2) intentional acts inconsistent with that existing right.” (Hill v. Xerox Bus. Servs., LLC (9th Cir. 2023) 59 F.4th 457, 468 [also explaining the Supreme Court “has removed prejudice to the non-moving party as an element of waiver in the context of arbitration contracts.”].

Here, it is undisputed Defendants knew of the arbitration agreement and their right to compel arbitration. Thus, Defendants’ waiver of their ability to compel arbitration depends on whether Defendants engaged in acts inconsistent with the right to arbitrate.

“There is no concrete test to determine whether a party has engaged in acts that are inconsistent with its right to arbitrate ... however [] a party’s extended silence and delay in moving for arbitration may indicate a ‘conscious decision to continue to seek judicial judgment on the merits of [the] arbitrable claims,’ which would be inconsistent with a right to arbitrate.” (Martin v. Yasuda (9th Cir. 2016) 829 F.3d 1118, 1125.) Additionally, “a party generally acts inconsistently with exercising the right to arbitrate when it (1) makes an intentional decision not to move to compel arbitration and (2) actively litigates the merits of a case for a prolonged period of time in order to take advantage of being in court. [Citation].” (Armstrong v.

Michaels Stores, Inc. (9th Cir. 2023) 59 F.4th 1011, 1015.) The central question is whether a party’s actions, “even if seemingly commonplace and not an express disavowal of arbitral forums, evinced the party’s partiality for a judicial resolution of the claims.” (Hill, supra, 59 F.4th at p. 472.)

Plaintiff appears to contend Defendants waived their right to arbitrate because there was no meet and confer. As discussed above, a meet and confer is not required to bring an instant motion to compel arbitration. Next, Plaintiff appears to contend that Defendants waived the Arbitration Agreement by engaging in discovery. Defendants’ engagement in discovery is not sufficient to find waiver, particularly because Plaintiff was the party that propounded the discovery requests and moved to compel their responses. (Newirth by and through Newirth v.

Aegis Senior Communities, LLC (9th Cir. 2019) 931 F.3d 935, 941 [‘parties do not act inconsistently with a right to compel arbitration when they engage in litigation activities that do not evince a decision to take advantage of the judicial forum”], abrogated on other grounds, Morgan v. Sundance, Inc. (2022) 596 U.S. 411, 418.) Further, Defendants did not delay in bringing their motion to compel arbitration. Plaintiff commenced this action on October 8, 2025 (ROA 2) and Defendants filed the instant motion to compel arbitration on November 19, 2025 (ROA 14).

Plaintiff has not met her burden to show Defendants waived their right to arbitrate.

Unconscionability

Arbitration agreements are contracts, and thus they are subject to generally applicable contract defenses, such as unconscionability. (Ramirez v. Charter Communications, Inc. (2024) 16 Cal.5th 478, 492; OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 125; Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 246.) “ ‘A contract is unconscionable if one of the parties lacked a meaningful choice in deciding whether to agree and the contract contains terms that are unreasonably favorable to the other party.’ (Kho, supra, 8 Cal.5th at p. 125.)” (Fuentes v. Empire Nissan, Inc. (2026) 19 Cal.5th 93, 102–103.)

Unconscionability has both a substantive and procedural element. (Fuentes, supra, 19 Cal.5th at p. 103.) “ ‘The procedural element addresses the circumstances of contract negotiation and formation, focusing on oppression or surprise due to unequal bargaining power.’ ” (Kho, supra, 8 Cal.5th at p. 125.) This element “is generally established by showing the agreement is a contract of adhesion, i.e., a ‘standardized contract which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it.’ ” (Ramirez, supra, 16 Cal.5th at p. 492.)

Substantive unconscionability “ ‘pertains to the fairness of an agreement’s actual terms and to assessments of whether they are overly harsh or one-sided.’ (Pinnacle, supra, 55 Cal.4th at p. 246, 145 Cal.Rptr.3d 514, 282 P.3d 1217.)” (Kho, supra, 8 Cal.5th at p. 125.) “Both procedural and substantive unconscionability must be shown for the defense to be established ....” (Id.)

Plaintiff contends the Arbitration Agreement is procedurally unconscionable due to the EFAA and because there was no onboarding process for Plaintiff. (Opp. at 13:7-8, 13:15 [ROA 68].) As discussed above, the Arbitration Agreement is not subject to the EFAA. Plaintiff acknowledges that she participated in an orientation session with Defendants, where she was provided with a new hire packet, later returned the new hire packet, and met with either Aguilar or Talebi. (Garcia Decl. ¶¶ 6-11 [ROA 68]; Talebi Decl. ¶¶ 7-8.) Plaintiff has not shown procedural unconscionability; nor has Plaintiff demonstrated substantive unconscionability. Plaintiff challenged the authenticity of the Arbitration Agreement, but did not identify any substantively unconscionable terms. Plaintiff has not met her burden to show the Arbitration Agreement is unconscionable.

Plaintiff’s Discovery Motions

Plaintiff asserts that she will be irreparably harmed if the motion to compel arbitration is decided prior to Plaintiff’s motions to compel responses to interrogatories and motions to compel responses to requests for production of documents are heard. (Opp. at 8:27-9:5.) On April 8, 2026, Judge De La Cruz sua sponte narrowed the scope of Plaintiff’s outstanding written discovery propounded on Defendant to include “all documents and communications referring or relating to the Arbitration Agreement, attached as Exhibit A to the Motion to Compel Arbitration.

Defendant ordered to provide verified response by no later than Apri 22, 2026.” (ROA 75 [04/06/26 Minute Order].) Defendant’s counsel declares Defendants timely provided verified responses. (Yang Reply Decl. ¶ 7 [ROA 91].) Plaintiff has not raised any issue of deficient responses or requested supplemental responses by the statutory deadline. (Id.) Additionally, the court notes the Arbitration Agreement provides for “written discovery and depositions as provided in the Federal Rules of Civil Procedure ....” (Talebi Decl. ¶ 10, Exh.

A, Sec. 7(d).)

Based on the foregoing, the motion to compel arbitration is granted.

Defendants to give notice.

50 Lynch vs. MDxHealth, Inc.

25-01535895 Demurrer to Complaint

The Demurrer to the Complaint brought by Defendants MDxHealth, Inc., Brian Wiest and Karen Murvin is OVERRULED, as to the First, Fourth and Sixth Causes of Action. The Demurrer is SUSTAINED, with 15-days leave to amend, as to the Second, Third, Fifth, Seventh and Eighth Causes of Action.

The Demurrer to the First Cause of Action for Discrimination is OVERRULED. In challenging the sufficiency of this claim, the demurrer firstly argues that Plaintiff conceded poor performance. A required element of a claim for discrimination is that Plaintiff was “performing satisfactorily” in their position. (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 321.)

Per the Complaint, Plaintiff was issued a “Performance Improvement Plan (‘PIP’)” in June of 2024, for allegedly “less than satisfactory performance.” (¶14(b) of Complaint.) However, this placement was “inconsistent with [Plaintiff’s] objectively strong performance record” and his “national ranking.” (Ibid.) Moreover, the Complaint alleges that, throughout his employment, Plaintiff “received consistent praise for exceeding expectations and was regularly ranked among the top Strategic Account Managers nationwide.” (¶12 of Complaint.)

The above is sufficient to allege Plaintiff was performing satisfactorily, and to raise an inference the Performance Improvement Plan was not genuinely based on performance.

Additionally, Defendant argues that Plaintiff has not alleged circumstances which suggest discrimination, given he concedes his replacement was 40 years old (¶15(e) of Complaint); however, as noted by Plaintiff, “[i]t is both logically and practically possible for an employer to discriminate against a person on the basis of a protected personal characteristic despite the fact that the person is replaced by someone