Seventh Circuit Court of Appeals Commentary : In Their Opinion : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

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BARTON v. ZIMMER, INC. (October 18, 2011)

Zimmer, Inc. sells artificial hips and knees. It employed Bruce Barton as part of its sales force since 1993. Andy Richardson became Barton's supervisor in 2004. Richardson eliminated many of Barton's duties over the course of the next year, most likely due to age discrimination (conceded, for purposes of argument, by Zimmer). Barton complained to Human Resources representative Richard Abel after a negative May 2005 performance review. Able investigated the situation, met with Barton and Richardson, and ultimately recommended that Richardson be fired for his divisive leadership. In the meantime, Barton had been on vacation,FMLA leave, and paid administrative leave. In September, Barton returned and began reporting to Sherri Milton. Barton complained about the assignments he received from Milton and filed an EEOC charge, alleging that the assignments were in retaliation for his earlier EEOC charge against Richardson. After Milton criticized his performance, Barton suffered a mental breakdown. He used up his FMLA leave, as well as his short and long-term disability benefits. The Social Security Administration granted a total disability benefits claim and Burton retired from Zimmer. Barton filed suit against Zimmer for ADEA discrimination and retaliation and FMLA interference. Judge Springmann (N.D. Ind.) granted summary judgment to Zimmer. In part, she concluded that Barton could not prevail on his ADEA claim because he was only seeking front pay, not reinstatement. Barton appeals.

In their opinion, Seventh Circuit Judges Evans (who, as a result of his death, took no part in the decision), Sykes, and Hamilton affirmed. The Court first addressed the Richardson ADEA claim. It disagreed with the district court's conclusion that front pay is not available because of the statute's compensatory damages exclusion. In Pollard, the Supreme Court held, in the context of Title VII, that front pay could be an appropriate substitute for reinstatement if the reinstatement remedy was not viable as a result of psychological injuries caused by the discrimination. The Court assumed that the Pollard Title VII approach would apply in an ADEA case but concluded that Barton was not entitled to it. Here, Barton’s psychological injuries that precluded his reinstatement arose out of the job assignments from Milton, not from Richardson. The Milton job assignments were not the result of any age discrimination. The Court turned to the ADEA retaliation claim. To prevail, Barton was required to show a statutorily protected activity, a materially adverse employment action, and a causal relation between the two. The Court concluded that Barton's challenging new job assignment was probably not a materially adverse employment action but that, even if it was, no reasonable jury could conclude that Milton assigned the task to him in retaliation for his protected activity. The project was important to the company and Barton's work history showed that he was qualified to complete it. Finally, the Court addressed the FMLA interference claim. The FMLA requires employers to restore an employee to his prior or equivalent position upon the termination of leave. It is true that Barton was not returned to his prior position since most of his duties had been eliminated and the few projects he had were completed. The record supports, however, the conclusion that Zimmer assigned him to the same duties he would have had he not taken leave. The FMLA requires no more.