Barton v. Zimmer, Inc.

• Decision Date: 18 October 2011
• Docket Number: No. 10–2212.,10–2212.
• Citation: 44 NDLR P 26,662 F.3d 448,113 Fair Empl.Prac.Cas. (BNA) 929
• Parties: Bruce BARTON, Plaintiff–Appellant, v. ZIMMER, INC., Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

113 Fair Empl.Prac.Cas. (BNA) 929

44 NDLR P 26

662 F.3d 448

Bruce BARTON, Plaintiff–Appellant,

v.ZIMMER, INC., Defendant–Appellee.

No. 10–2212.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 5, 2010.Decided Oct. 18, 2011.

Cynthia Rockwell (argued), Attorney, Rockwell & Jansen, Fort Wayne, IN, for Plaintiff–Appellant.

Steven L. Jackson (argued), Attorney, Baker & Daniels LLP, Fort Wayne, IN, for Defendant–Appellee.

Laurie A. McCann, Attorney, AARP Foundation Litigation, Washington, DC, for Amicus Curiae American Association of Retired Persons.Rebecca M. Hamburg, Attorney, National Employment Lawyers Association, San Francisco, CA, for Amicus Curiae National Employment Lawyers Association.Before EVANS ^*, SYKES, and HAMILTON, Circuit Judges.SYKES, Circuit Judge.

Bruce Barton was employed in the sales-training department at Zimmer, Inc., an Indiana-based manufacturer of orthopedic devices. In May 2004 Zimmer assigned Andy Richardson to supervise the department. During the course of the next year, Richardson removed many of Barton's primary job duties because he thought Barton, age 57, was too old. Barton lodged an age-discrimination complaint with Richard Abel, Zimmer's Vice President of Human Resources, and also with the Equal Employment Opportunity Commission (“EEOC”). Abel investigated the claim and eventually fired Richardson.

In the meantime, however, Barton went on medical leave, as authorized by the Family Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601 et seq. He remained on leave until shortly before Richardson was fired. Sherri Milton became the department's new supervisor, and she assigned Barton to revamp one of Zimmer's training classes. The pressure of this assignment proved too much for Barton. He suffered a psychological breakdown, exhausted his disability leave, and retired. He then sued Zimmer for discrimination and retaliation in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq., and for interference with his right to reinstatement under the FMLA. The district court granted summary judgment for Zimmer.

We affirm. Barton's ADEA claims fail for lack of causation and any available remedy. Although the evidence, viewed in Barton's favor, establishes that Richardson discriminated against him because of his age, the ADEA provides no remedy because the discrimination did not cause any loss and was not linked to the disability that later precipitated Barton's early retirement. Moreover, there is no evidence that either Abel or Milton retaliated against Barton for complaining about Richardson's discrimination. Finally, Barton has no claim under the FMLA because when he returned to work after his medical leave, the company assigned him equivalent duties without regard to his medical leave.

I. Background

Zimmer manufactures and sells orthopedic devices, such as artificial hips and knees. The company's Sales Training Department includes the Director of Sales Training as well as several managers who report to the Director. Historically the department had three managers with the titles of “Manager, Sales Training” (“MST”), each responsible for a product-specific area: “Knee MST,” “Hips MST,” and “Trauma & Extremities MST” (“T & E MST”).

Bruce Barton began his career at Zimmer in 1993 as the Director of Sales Training. After a few years, he was demoted to Knee MST (at his request to avoid termination), and he held that position for over a year. In 1998 Zimmer created a fourth manager position specifically for Barton: Manager, Performance, Improvement & Development (“MPID”). In this role Barton was responsible for teaching general selling skills, as opposed to product-specific sales.

In May 2004 Zimmer promoted Andy Richardson to Director of Sales Training. In that capacity Richardson was Barton's immediate supervisor. He was a terrible manager. Among other things, Richardson made several comments about wanting to get rid of “old guys” like Barton. During the next year, Richardson removed Barton's most significant job duties—teaching general selling skills—and replaced Barton's classes with his own program called “Power Selling,” which he taught himself. He then trained a younger employee to be his Power Selling protégé. Zimmer concedes for the sake of argument that Richardson reduced Barton's job duties because of his age.¹

In late May 2005, Richardson gave Barton a bad performance review. A few days later, Barton emailed Richard Abel, Zimmer's VP for Human Resources, alleging age discrimination. The next day, Barton left for a previously scheduled one-week vacation. While Barton was gone, Richardson told various employees that Barton was “done” at Zimmer. Barton, who has a history of anxiety and panic attacks, heard about Richardson's comments and became emotionally unstable. Instead of returning to work after his vacation, Barton went on FMLA leave until late August to address his mental-health needs.

During Barton's leave, Abel met twice with Richardson to discuss Barton's complaint. Richardson said he wanted Barton terminated, or at least removed from the department, ostensibly for poor performance. Based on Richardson's assessment of Barton, Abel initially agreed. Although Abel communicated with Barton during this time, the two never spoke at length about the discrimination claim because Abel thought it was inappropriate to question Barton while he was recovering from a panic attack allegedly induced by Richardson. While on leave, Barton filed an age-discrimination charge with the EEOC.

On August 22 Barton returned to work, met with Abel, and explained for the first time that Richardson had stripped away many of his job duties. Abel was surprised. Based on this new information, Abel believed that Barton would not be able to return successfully until the conflict between the two was resolved; he reserved judgment about how to proceed until all three of them could meet. When they did, Abel sensed the tension between Richardson and Barton, so he asked Barton to continue on paid administrative leave pending further investigation. Abel's inquiry revealed that Richardson was a divisive leader and belittled nearly everyone in the Sales Training Department. Abel recommended that Richardson be fired. Zimmer terminated Richardson effective September 12 and internally transferred Sherri Milton to replace him as the Sales Training Director.

Milton arrived at a department in transition. Power Selling was the most frequently taught course, and Richardson had been its primary teacher. Knee MST Scott Bowman and Knee Assistant Manager Andy Radford were the only others with Power Selling experience. To fill the gap, Milton decided that the other managers—Barton (MPID), Mike Schieferstein (Hips MST), and Larry Cline (T & E MST)—needed to assist Bowman and Radford. Each would pick up a few Power Selling sessions, most of which were on weekends, and each was required to demonstrate competency in this teaching approach. In addition, Zimmer was in the process of shifting its training from live to online classes, so live curricula needed to be updated.

Barton returned to work on September 13, Milton's first day as the Director and the day after Richardson's termination. Initially, Barton had little to do. Richardson had reduced his selling-skills duties, and before his leave he had been working on short-term projects that were completed. On his first day back, Milton asked him to observe a Power Selling class. The next day she told Barton, Schieferstein, and Cline that they would have to assist in teaching a Power Selling class on an upcoming weekend and would need to prepare a dry run for management.

During this meeting, Barton raised the subject of Richardson's conduct. Milton replied that she did not want to hear any complaints about Richardson because the company was moving on. According to Barton, Milton also said she thought Richardson was a true genius and had done good things for Zimmer. After the meeting Barton filed another charge with the EEOC, this time alleging that Milton, by assigning him Power Selling duties, was retaliating against him for filing the prior EEOC charge against Richardson. Barton performed poorly in his Power Selling dry run.

Milton thereafter decided to assign Barton to revamp one of Zimmer's knee classes. Initially, Barton was to assess which aspects of the class needed updating, and later, he was told to develop new content for the course. The new course was to be taught primarily by subject-matter experts, with Barton moderating and teaching certain portions of the class. The parties dispute whether Barton was actually qualified to perform these tasks; Barton claims that he knew little about Zimmer's artificial knees and stated as much to Milton at the time. But Barton was formerly the Knee MST and presumably knew the product line. On that basis Milton believed Barton was capable of updating and teaching the knee class. She also referred Barton to various internal resources and asked some knowledgeable people within the company to assist him. Barton believed these resources were insufficient. After working for several months on the new class, Barton presented a portion of the updated content to management. According to Milton, Barton's “new” material was essentially the same as the old course. The scheduled debut of the new course was just one month away, and Milton told Barton she was worried he would not make the deadline.

In response to Milton's critique, Barton had another psychological break. He first complained to Abel that Milton's requests were unreasonable and that she was intentionally setting him up to fail in retaliation for his prior EEOC charges. Barton went to his doctor, who ordered him off work for a week to be evaluated. After using up his remaining FMLA leave (he had just one day left), Barton took short-term and then long-term disability leave, both funded by Zimmer. Barton eventually filed a claim...