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Bruce Barton v. Zimmer

October 18, 2011

BRUCE BARTON, PLAINTIFF-APPELLANT,
v.
ZIMMER, INC., DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 1:06-CV-208-Theresa L. Springmann, Judge.

The opinion of the court was delivered by: " Sykes, Circuit Judge.

ARGUED NOVEMBER 5, 2010

Before EVANS , SYKES, and HAMILTON, Circuit Judges.

Bruce Barton was employed in the sales-training department at Zimmer, Inc., an Indiana-based manufacturer of orthopedic devices. In May 2004

"Circuit Judge Terence T. Evans died on August 10, 2011, and did not participate in the decision of this case, which is being resolved by a quorum of the panel under 28 U.S.C. § 46(d).

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 protege. Zimmer concedes for the sake of argument that Richardson reduced Barton's job duties because of his age.*fn1

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 ...


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