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Baker v. Becton Dickinson

AARP Asks Court to Clarify Evidentiary Standard for Victims of Workplace Age Discrimination


AARP’s brief asks the U.S. Court of Appeals for the Sixth Circuit to examine whether its direct evidence standard is being misconstrued and misapplied to deprive age discrimination victims of their day in court.


Denver Baker was employed as a salesman by Becton, Dickson & Co (“BD”), a global medical technology company, from 1987 until 2008, when he was fired at the age of 58. In 2006, BD restructured its sales regions and Baker got Mike Nugent, who was in his thirties, as his supervisor. While Nugent’s only annual performance review of Baker was generally positive, it did point out that Baker had lost an important account. Subsequently, Baker’s sales of some products declined, resulting in his being placed on an informal and then a formal performance improvement program, but he did not meet all the goals set for him. Eventually he was terminated and replaced by a sales associate in his twenties.

Baker acknowledges having lost the account, but argues that he gained an even larger account and that the performance goals he did not meet were unrealistic and set him up for failure. He pointed out that under Nugent several other older workers had been terminated and described several conversations he had with Nugent in which Nugent said Baker was too old, lacked energy and eagerness, made assumptions younger people do not make, and, ultimately, that Nugent stated he did not want anyone over the age of 40 in sales. Baker sued, arguing not only that his termination violated the Age Discrimination in Employment Act, but also that it was part of a larger illegal effort to systematically purge the department of older workers.   

In the trial court, BD moved for summary judgment, arguing that Baker’s claims should be dismissed without allowing him to go to trial. Baker countered that his evidence, including Nugent’s statements, constituted direct evidence of age discrimination that entitled him to a trial.  Nevertheless, the court dismissed his claims, holding that his evidence, including Nugent’s statements, did not meet the Sixth Circuit’s stringent direct evidence test. In reaching this conclusion, the trial court relied on a prior Sixth Circuit decision in an Americans with Disabilities Act case. In that case the court said that “I fired you because you are disabled” is the only type of statement that constitutes direct evidence of discrimination.

Baker appealed, and AARP Foundation Litigation attorneys filed AARP’s friend-of-the-court brief in Baker v. Becton. The brief argues that the above-quoted statement is but one example — and an extreme one at that — of evidence that satisfies  the Sixth Circuit’s test, and further argues that the Sixth Circuit has viewed evidence such as that presented by Baker as sufficient in other kinds of antidiscrimination cases. The brief points out that several lower courts within the Sixth Circuit have similarly misapplied the direct evidence test in age discrimination cases. AARP, therefore, asks the Sixth Circuit to use this opportunity to clarify its standard and correct the misapprehensions that have a arisen as a result of its prior rulings.

What’s at Stake

The exceptionally high evidentiary burden imposed on Baker by the trial court, unless overturned on appeal, will preclude virtually all age discrimination victims from proving his/her case with direct evidence of discrimination.

Case Status

Baker v. Becton Dickinson & Co is before the U.S. Court of Appeals for the Sixth Circuit.

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Our legal advocacy initiatives  - conducted by AARP Foundation Litigation (AFL) - reflect nearly 20 years of work in federal and state courts across the country. Through our efforts, we support the Foundation’s four impact areas: Tackling Senior Hunger, Paving the Way to Stable Income, assuring the adequacy and availability of Safe and Afffordable Housing and Reconnecting People to Families and Communities, and ensure that those 50 and older have a voice in the laws and policies that affect their daily lives.