Charles Baker v. Becton, Dickinson and Company

Filing

OPINION filed : The district court judgment is REVERSED and the case is REMANDED for further proceedings consistent with this opinion, decision not for publication. Damon J. Keith, Circuit Judge; Boyce F. Martin , Jr., Authoring Circuit Judge and John M. Rogers, Circuit Judge.

Case: 11-6273

Document: 006111759478

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NOT RECOMMENDED FOR PUBLICATION
File Name: 13a0673n.06

FILED

No. 11-6273

Jul 22, 2013
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

CHARLES DENVER BAKER,

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Plaintiff-Appellant,
v.

BECTON, DICKINSON AND COMPANY,
Defendant-Appellee.

DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
KENTUCKY

Before: KEITH, MARTIN, and ROGERS, Circuit Judges.
BOYCE F. MARTIN, JR., Circuit Judge. Denver Baker sued his former employer,
Becton, Dickson, and Company, for age discrimination. The district court found that Baker did not
present direct evidence of discrimination and that he had not presented enough circumstantial
evidence to meet his burden of proving that Becton’s legitimate, non-discriminatory reason for
terminating Baker was pretext. Baker appeals the district court’s grant of Becton’s summary
judgment motion. For the reasons that follow, we REVERSE the district court’s judgment and
REMAND the case for further proceedings consistent with this opinion.
I.
Baker worked at Becton, a global medical technology company, from 1987 until his
termination in 2008. At the time of Baker’s termination he was fifty-eight-years-old. During his
time at Becton, Baker held the position of an Account Business Manager in Becton’s Infectious

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Disease division. As an Account Business Manager, Baker was expected to maintain existing clients
and create new sales opportunities. One of the products that Baker sold was a blood-testing product
called BACTEC, which is the product most relevant to this case.
From 2006 until 2008 Baker reported to his superior, Mike Nugent, who was in his thirties
at the time. In 2007, Nugent gave Baker a very good year-end review. However by 2008, Baker’s
sales had dropped and he ranked within the bottom 50% of Account Business Managers in sales in
the region. In particular, Baker lost a series of BACTEC accounts, starting with the Jewish
Healthcare account, and also lost business amounting to around one hundred thousand dollars for
manual rapid testing products. In February 2008, Baker alerted Nugent to issues surrounding a
BACTEC contract with Highlands Regional—Highlands Regional was planning on signing with a
competitor in July if Becton did not allow it to sign a shorter contract of twelve to eighteen months.
In March 2008, Jennie Stuart Medical Center also canceled its BACTEC contract.
In April, Nugent consulted with his supervisor, Richard Briggs, about Baker’s sales and they
determined they would place Baker on an informal performance improvement plan. Nugent asked
Baker to create a plan for how he could make up for the recent sales losses. The informal
performance plan was to last ninety days. It was at this point, Baker alleges, that Nugent began to
make comments related to Baker’s age during a series of phone calls.
First, Baker alleges that on April 14, 2008, Baker alleges that Nugent told him something
along the lines of, “you are getting too old and making assumptions that younger people do not
make.” Second, on a sales call the next Monday, Nugent told Baker, “[y]ou are too old and lack
energy and eagerness. You are not the kind of sales rep that [Becton] want[s] to build its future on.”
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Finally, on another sales call a few days later Nugent told Baker he was “too old and too slow,” and
that he “did not want anyone over 40 in sales.”
By July 2008, Baker had not met the goals he had set for himself in his informal performance
plan and Nugent, Briggs, and Becton’s Human Resources Partner, Michelle Erickson, placed Baker
on a formal performance improvement plan with goals created by Nugent. One of the performance
improvement goals was that Baker could not lose any additional BACTEC accounts.
On August 25, 2008, Baker lost the Highlands Regional BACTEC account, which had been
in jeopardy since February. Nugent, Briggs, and Erickson terminated Baker in August. Nugent said
the impetus for the termination was the loss of the Highlands Regional Account.
In addition, Baker alleges that over the course of Nugent’s time as a supervisor he also got rid of two
other Account Business Managers who were in their fifties at the time. First, shortly after becoming
regional supervisor, Nugent approached Beverly Callahan, age 57, about her sales numbers.
Following the performance discussion, Callahan decided to voluntarily retire. Second, Nugent
terminated Margaret Braddy, age 51, in May 2008 after Nugent implemented a formal performance
plan with a goal of no new BACTEC losses.
Baker brought suit, alleging that the real reason for his termination was age discrimination
in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621, and the Kentucky Civil
Rights Act, KRS § 344. Baker alleged that Nugent set Baker up to fail his performance plan by
requiring no new BACTEC losses, even though Nugent was aware the Highlands Regional account
was in jeopardy. As additional supporting evidence for his claims, Baker pointed to Nugent’s
comments and to the termination of Callahan and Braddy.
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Becton filed a motion for summary judgment, which the district court granted in October
2011. The district court held that Baker did not present direct evidence of discrimination, and further
held that Baker’s circumstantial evidence failed to raise a genuine issue of material fact regarding
whether Becton’s legitimate, non-discriminatory reason for terminating Baker was pretext. Baker
appeals the district court’s decision.
II.
We review a district court’s grant of summary judgment de novo. Rowan v. Lockheed Martin
Energy Sys., Inc., 360 F.3d 544, 547 (6th Cir. 2004). Summary judgment is proper when there is “no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). We consider the facts in the light most favorable to the nonmoving party and
a genuine dispute of material fact exists if the evidence shows “that a reasonable jury could return
a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Age Discrimination in Employment Act makes it unlawful for an employer “to fail or
refuse to hire or to discharge any individual or otherwise discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment because of such
individual’s age.” 29 U.S.C. § 623(a)(1). Plaintiffs have the burden of persuasion to show that “age
was the ‘but-for’ cause of the employer’s adverse action.” Blizzard v. Marion Technical Coll., 698
F.3d 275, 283 (6th Cir. 2012) (quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009)).
A plaintiff may prove age discrimination by either direct evidence or circumstantial evidence.
Geiger v. Tower Auto., 579 F.3d 614, 620 (6th Cir. 2009). Direct evidence is evidence that “requires
the conclusion that unlawful discrimination was at least a motivating factor in the employer’s
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actions.” Id. (quoting Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003) (en
banc). Meanwhile circumstantial evidence is evidence that “does not on its face establish
discriminatory animus, but does allow a factfinder to draw a reasonable inference that discrimination
occurred.” Id. Here, we need not decide whJuly 18, 2013ether Nugent’s statements are extreme
enough to constitute direct evidence, because they support a circumstantial-evidence argument, and
thus we consider the case on Baker’s circumstantial evidence alone.
When assessing a plaintiff’s circumstantial evidence we apply the McDonnell Douglas
burden-shifting framework. Id. at 622. The plaintiff must first present a prima facie case and the
employer may then respond with a legitimate, non-discriminatory reason for its employment
decision. Blizzard, 698 F.3d at 283. Once the employer has provided a non-discriminatory reason,
the burden of production reverts to the plaintiff to provide evidence proving the employer’s proffered
reason is pretext. Id.
To present a prima facie case of age discrimination a plaintiff must establish four elements:
“(1) he was at least 40 years old at the time of the alleged discrimination, (2) he was subjected to an
adverse employment action, (3) he was otherwise qualified for the position, and (4) the successful
applicant was substantially younger than the plaintiff.” Bush v. Dictaphone Corp., 161 F.3d 363,
368 (6th Cir. 1998). It is undisputed that Baker was over forty years old at the time of his
termination, that he was terminated from his job, and that he was replaced by a younger person.
However, Becton argues that Baker cannot prove the third factor, that he was qualified at the time
of his termination, and points to Baker’s decreasing sales numbers for support.

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While Baker’s sales dropped significantly in his last year at Becton, he had held the position
of Account Business Manager from 1987 until 2008. In Nugent’s review of Baker in October 2007,
Nugent said that 2007 had been one of Baker’s strongest years with Becton and noted Baker had a
large amount of technical expertise and strong teamwork skills. Furthermore, before Nugent took
over the supervisory role, Baker’s reviews were positive as well. In Baker’s October 2006 review,
Baker’s supervisor described Baker as having “rock solid integrity, experience and knowledge, and
tremendous dedication.” The review ended with, “[one] thing for sure, [Baker] is consistently on
the front end of both challenges and opportunities – he lives [Becton] values.” There is sufficient
evidence that Baker was qualified for the position and satisfied his prima facie case.
The district court held that even if Baker satisfied his prima facie burden, Becton had
responded with a legitimate, non-discriminatory reason by noting the various sales losses that Baker
had sustained over the last year. Baker had lost significant BACTEC clients including Jewish
Healthcare and the Highlands Regional account. Furthermore, in March of 2008, Baker ranked last
in his region for BACTEC sales. Becton argues that it terminated Baker for his failure to meet his
performance goals, declining sales, and the loss of significant clients.
Plaintiffs may prove pretext by providing circumstantial evidence that demonstrates the
employer’s stated reason did not actually motivate their conduct. Wexler, 317 F.3d at 576 (citing
Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir.2000)). As circumstantial evidence Baker
points to the comments Nugent made to him during three sales phone calls and the alleged systematic
removal of two other Account Managers who were in their fifties. Baker further alleges that Nugent

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set him up to fail by creating a performance plan requiring no more BACTEC losses when Nugent
was aware that at least one of Baker’s accounts was in jeopardy.
Baker’s argument about Nugent’s comments to Baker cannot be easily dismissed. Nugent
commented that Baker was “getting too old and making assumptions that younger people do not
make.” Nugent also commented that Baker was “too old and lack[ed] energy and eagerness,” and
that he was “not the kind of sales rep that [Becton] want[s] to build its future on.” Finally, Nugent
commented that Baker was “too old and too slow,” and Nugent also said he “did not want anyone
over 40 in sales.”
On their face, Nugent’s comments juxtapose Baker, whom he described as “too old,” against
his “younger” colleagues. Furthermore, while of course a person may lack energy and eagerness
regardless of age, Nugent’s comments are clearly made in relation to Baker’s age. The comments
also refer to Nugent’s hopes for his sales team in the future, which he hoped would include no one
over forty years old. These comments were made just prior to Baker being placed on a formal
performance improvement plan. Additionally, when formulating Baker’s performance plan with the
requirement of no new BACTEC losses, Nugent was already aware that Highlands Regional was
considering signing with a competitor. Nugent’s statements and their temporal proximity to
Becton’s implementation of a performance improvement plan that, arguably, Baker was incapable
of satisfying, constituted sufficient evidence of pretext to create a genuine issue of material fact. The
district court judgment is REVERSED and the case is REMANDED for further proceedings
consistent with this opinion.

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