                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 13a0673n.06

                                          No. 11-6273                                 FILED
                                                                                   Jul 22, 2013
                         UNITED STATES COURT OF APPEALS                     DEBORAH S. HUNT, Clerk
                              FOR THE SIXTH CIRCUIT


CHARLES DENVER BAKER,                                 )
                                                      )
       Plaintiff-Appellant,                           )
                                                      )
v.                                                    )
                                                      )   ON APPEAL FROM THE UNITED
                                                      )   STATES DISTRICT COURT FOR
BECTON, DICKINSON AND COMPANY,                        )   THE EASTERN DISTRICT OF
                                                      )   KENTUCKY
       Defendant-Appellee.                            )



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
No. 11-6273
Baker v. Becton, Dickinson, and Co.

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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Baker v. Becton, Dickinson, and Co.

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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No. 11-6273
Baker v. Becton, Dickinson, and Co.

       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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Baker v. Becton, Dickinson, and Co.

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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No. 11-6273
Baker v. Becton, Dickinson, and Co.

       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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Baker v. Becton, Dickinson, and Co.

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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