In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2212
B RUCE B ARTON,
Plaintiff-Appellant,
v.
Z IMMER, 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.
A RGUED N OVEMBER 5, 2010—D ECIDED O CTOBER 18, 2011
Before E VANS , S YKES, and H AMILTON, Circuit Judges.
S YKES, Circuit Judge. 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).
2 No. 10-2212
Zimmer assigned Andy Richardson to supervise the
department. During the course of the next year, Richard-
son 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 Commis-
sion (“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 break-
down, 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 causa-
tion 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,
No. 10-2212 3
there is no evidence that either Abel or Milton retaliated
against Barton for complaining about Richardson’s dis-
crimination. 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 termina-
tion), and he held that position for over a year. In 1998
Zimmer created a fourth manager position specifically
for Barton: Manager, Performance, Improvement & Devel-
opment (“MPID”). In this role Barton was responsible
for teaching general selling skills, as opposed to prod-
uct-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
4 No. 10-2212
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 perfor-
mance 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
1
Barton also alleged that Richardson tormented him in an
effort to make him quit, but he has not challenged the part
of the district court’s order granting summary judgment on
his hostile-work-environment claim. Nor has he developed
a constructive-discharge argument based on Richardson’s
conduct.
No. 10-2212 5
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 discrimina-
tion 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 sur-
prised. 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 re-
served 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 Richard-
son was a divisive leader and belittled nearly everyone
in the Sales Training Department. Abel recommended
that Richardson be fired. Zimmer terminated Richard-
son 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 Rich-
ardson had been its primary teacher. Knee MST Scott
Bowman and Knee Assistant Manager Andy Radford
were the only others with Power Selling experience. To
6 No. 10-2212
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 ses-
sions, 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 Rich-
ardson’s conduct. Milton replied that she did not want to
hear any complaints about Richardson because the com-
pany 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.
No. 10-2212 7
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
8 No. 10-2212
day left), Barton took short-term and then long-term
disability leave, both funded by Zimmer. Barton
eventually filed a claim for total-disability benefits with
the Social Security Administration. The claim was
granted, with an onset date of February 7, 2006, the day
he presented the new course to management. On Novem-
ber 2, 2006, Barton accepted a retirement package
from Zimmer. Based on his permanent disability, Barton
has not sought work since.
Barton sued Zimmer for discrimination and retaliation
in violation of the ADEA and also for interference with
his FMLA rights. He alleged that Richardson, Milton,
and Abel improperly removed his selling-skills teaching
duties, failed to return him to his previous position
after his FMLA leave, and set him up to fail once he
returned by assigning him to revise the knee class.
Zimmer moved for summary judgment, which the
district court granted in part, dismissing most of
Barton’s claims. Only one claim was left standing:
whether Richardson discriminated against Barton by
taking away his selling-skills duties. The court allowed a
second round of summary-judgment briefing on whether
the ADEA provided a remedy because Barton was only
seeking front pay in lieu of reinstatement. In a second
decision, the court held that Barton could not recover
for Richardson’s discrimination because front pay in
lieu of reinstatement would too closely resemble a
compensatory-damages remedy for an emotional in-
jury, which is not allowed under the ADEA.
No. 10-2212 9
II. Discussion
Barton’s appeal raises three issues: (1) whether Richard-
son discriminated against him because of age by
stripping him of his selling-skills duties; (2) whether
Abel or Milton retaliated against Barton for complaining
about age discrimination; and (3) whether Zimmer
failed to return Barton to an equivalent job after his
FMLA leave. We review the district court’s order
granting summary judgment de novo, viewing the facts
in Barton’s favor. See Righi v. SMC Corp., 632 F.3d 404,
408 (7th Cir. 2011).
A. ADEA Discrimination
To prove discrimination in violation of the ADEA,
Barton must establish that Zimmer subjected him to an
adverse employment action because of his age. See Van
Antwerp v. City of Peoria, Ill., 627 F.3d 295, 297 (7th Cir.
2010). Adverse employment actions for purposes of the
federal antidiscrimination statutes generally fall into
three categories: (1) termination or reduction in com-
pensation, fringe benefits, or other financial terms of
employment; (2) transfers or changes in job duties that
cause an employee’s skills to atrophy and reduce future
career prospects; and (3) unbearable changes in job con-
ditions, such as a hostile work environment or condi-
tions amounting to constructive discharge. Herrnreiter v.
Chi. Hous. Auth., 315 F.3d 742, 744-45 (7th Cir. 2002).
Zimmer conceded for the sake of argument that Richard-
son reduced Barton’s selling-skills duties because of
his age. Like the district court, we will assume that this
10 No. 10-2212
was an adverse employment action for purposes of the
ADEA.
But Barton has a remedies problem. The ADEA permits
reinstatement, back pay, and other “legal or equitable
relief as may be appropriate,” 29 U.S.C. § 626(b), but not
“compensatory damages for pain and suffering or emo-
tional distress,” Comm’r of Internal Revenue v. Schleier,
515 U.S. 323, 326 (1995). Barton was not fired and his
compensation was not reduced, so an award of back pay
is unavailable. Because he is totally disabled, he cannot
be reinstated (assuming that remedy would otherwise
be appropriate). In lieu of reinstatement, Barton seeks
front pay: a cash award for what he would have earned
if he were reinstated.
In Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843,
852 (2001), a Title VII case, the Supreme Court observed
that front pay in lieu of reinstatement resembles com-
pensatory damages because both remedies, in proper
circumstances, compensate for a plaintiff’s inability to
work in the future. Relying on this similarity—
although not on Pollard specifically—the district court
held that front pay is unavailable as a matter of law
because it would amount to an award of compensatory
damages for an emotional injury.
Pollard went on to hold, however, that front pay under
Title VII is not properly classified as a compensatory-
damages remedy and therefore is not subject to Title VII’s
compensatory-damages cap. Id. at 854. Rather, the Court
held that front pay is an equitable remedy that may be
awarded for lost compensation “between judgment and
No. 10-2212 11
reinstatement or in lieu of reinstatement,” and is available
under Title VII’s uncapped equitable-remedies provi-
sion. Id. at 846 (emphasis added). As relevant here, the
Court observed that front pay might be an appropriate
equitable remedy where “reinstatement is not viable
because of continuing hostility between the plaintiff
and the employer or its workers, or because of psycho-
logical injuries suffered by the plaintiff as a result of
the discrimination.” Id.
The ADEA’s equitable-remedies provision is similar
to Title VII’s equitable-remedies provision, compare
29 U.S.C. § 626(b) (ADEA) with 42 U.S.C. § 2000e-5(g)(1)
(Title VII), and based on Pollard the front-pay award
Barton seeks is probably not categorically unavailable
as a compensatory-damages remedy for an emotional
injury, as the district court seemed to think. The
reasoning of Pollard suggests that front pay is an
available equitable remedy under the ADEA in the
right circumstances, in lieu of reinstatement, just as it is
under Title VII. But we need not decide this issue here.
Assuming the ADEA authorizes front pay, Barton is not
entitled to it. Although the district court did not
address this point, we may affirm a judgment on any
ground the record supports and the appellee has not
waived. Burns v. Orthoteck, Inc. Emps’. Pension Plan &
Trust, No. 10-1521, 2011 WL 4089798, at *3 (7th Cir.
Sept. 15, 2011); Williams v. Fleming, 597 F.3d 820, 823 (7th
Cir. 2010).
To recover front pay as an equitable remedy in lieu of
reinstatement, Barton would have to establish causa-
12 No. 10-2212
tion—that is, that Richardson’s discriminatory removal
of his job duties caused the disability that prevents his
reinstatement. See Pollard, 532 U.S. at 846 (“In cases in
which reinstatement is not viable . . . because of psycho-
logical injuries suffered by the plaintiff as a result of the
discrimination, courts have ordered front pay as a
substitute for reinstatement.” (emphasis added)). Here,
Barton cannot be reinstated because of the psychological
disability brought on by the pressure of updating the
knee class. But Richardson did not assign the class to
Barton; Richardson had already been terminated. Milton
assigned this task after Barton returned from his earlier
medical leave, and Barton admits that she did so based
on Zimmer’s corporate needs, not because of his age.2
Accordingly, there is no causal connection between Rich-
ardson’s discriminatory removal of Barton’s job duties
and the psychological disability that prevents reinstate-
ment from being a viable remedy. Barton’s disability was
caused by an unrelated job assignment from his new
supervisor.
In this respect this case resembles Franzoni v. Hartmarx
Corp., 300 F.3d 767, 773-74 (7th Cir. 2002). There, the
plaintiff’s job was eliminated, but he was given an
internal job transfer without any reduction in pay or
benefits; he later lost his job for unrelated reasons. He
sued his employer under the ADEA alleging that the
2
As we will discuss later, this admission is also inconsistent
with Barton’s allegation that Milton retaliated against Barton
by assigning him the knee class.
No. 10-2212 13
company had eliminated his earlier position based on
his age. Because of his internal transfer, however, he
suffered no loss of compensation or benefits from the
alleged discrimination, so back pay was inappropriate.
Nor was reinstatement a proper equitable remedy
because his termination was not unlawful. Accordingly,
we held that even if the elimination of his position was
motivated by age discrimination, the plaintiff lacked
an ADEA remedy. Id. at 774.
Similarly here, although Zimmer concedes for the sake
of argument that Richardson removed Barton’s sales-
skills teaching duties because of his age, Barton suffered
no loss of compensation or benefits. When he returned
from medical leave, Richardson was gone, and Barton’s
replacement supervisor gave him new responsibilities.
These new responsibilities provoked a stress-related
psychological disability that led to his eventual early
retirement, preventing reinstatement. Here, as in
Franzoni, the ADEA provides no remedy.
B. ADEA Retaliation
To prove retaliation in violation of the ADEA, Barton
must show that he engaged in statutorily protected activ-
ity, that he suffered a materially adverse action, and
that the two are causally related. Horwitz v. Bd. of Educ.,
260 F.3d 602, 612 (7th Cir. 2001). Under the ADEA re-
taliation must be a but-for cause of a materially adverse
action, not merely a contributing factor. See Gross v. FBL
14 No. 10-2212
Fin. Servs., Inc., 129 S. Ct. 2343, 2351 (2009)3 ; Serwatka v.
Rockwell Automation, Inc., 591 F.3d 957, 961 (7th Cir. 2010).
The issue here is whether Barton suffered a materially
adverse action causally linked to his complaints about
Richardson’s age discrimination.
The standard for a materially adverse action sufficient
for a retaliation claim is somewhat more forgiving than
for a discrimination claim, but the action must be severe
enough to dissuade a reasonable employee from exer-
cising statutory rights. Lapka v. Chertoff, 517 F.3d 974, 985-
86 (7th Cir. 2008). Examples include “termination of
employment, a demotion evidenced by a decrease in
wage or salary, a less distinguished title, a material loss
of benefits, significantly diminished material responsi-
bilities, or other indices that might be unique to a particu-
lar situation.” Crady v. Liberty Nat’l Bank & Trust Co. of
Ind., 993 F.2d 132, 136 (7th Cir. 1993). Receiving a chal-
lenging work assignment typically is not sufficiently
adverse to amount to a retaliatory adverse employment
action. See Lapka, 517 F.3d at 986.
3
In Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343, 2350
(2009), the Supreme Court interpreted the ADEA’s discrim-
ination provision, which prohibits discrimination “because
of” age, 29 U.S.C. § 623(a)(1), and does not include an ex-
plicit mixed-motives provision like Title VII. The ADEA’s
antiretaliation provision employs similar language, prohib-
iting discrimination “because” an employee exercises pro-
tected rights. Id. § 623(d). Thus, the Court’s conclusion that the
ADEA requires but-for causation for discrimination claims
applies equally to retaliation claims.
No. 10-2212 15
Barton contends that Abel removed his responsibility
for teaching selling skills and assigned him to update
the knee class because he complained about Richard-
son. This alleged retaliation supposedly occurred
when Barton returned to work in September 2005, after
Richardson’s termination. Barton focuses on communi-
cations between Abel and Richardson in which Abel
initially agreed with Richardson’s assessment that
Barton should be transferred or receive new duties.
Barton claims that this evidence shows that Abel
retaliated against him by taking away his selling-skills
duties and giving him the knee-class assignment.
The factual record does not support this theory. Abel
did not reduce Barton’s selling-skills duties; Richardson
did, during the course of the prior year, and this
formed the basis of Barton’s age-discrimination complaint.
Abel could not take away from Barton what was
already gone. Furthermore, although the evidence shows
that Abel initially concurred in Richardson’s assessment
of Barton’s performance and agreed that he should be
reassigned to different job duties, Abel never followed
through on these plans. To the contrary, after meeting
with Barton and hearing his side of the story, Abel in-
vestigated the discrimination claim and eventually rec-
ommended Richardson’s termination. Afterward, Milton
assigned Barton to the knee class, not Abel. Barton asks
us to infer retaliatory motive from the fact that Abel
initially sided with Richardson. That inference is unrea-
sonable in light of Abel’s later actions. Moreover, it is
not proof of retaliation because it is not linked to any
adverse employment action.
16 No. 10-2212
Barton also claims that Milton assigned him to rework
the knee class in retaliation for his complaint about Rich-
ardson. It is not obvious that Barton’s assignment to
the knee class was materially adverse, but even if it
was, it’s not proof of retaliation. Barton contends that
retaliatory motive can be inferred from the fact that
Milton and Richardson apparently were friends, and
Milton thought Richardson had done good things for
Zimmer. But Barton also admits that the knee class was
important to the company and that Milton made the
assignment based on Zimmer’s sales-training needs.
While he claims the assignment was unreasonable in
light of his lack of knowledge of Zimmer’s knee-replace-
ment products, he has no evidence that Milton thought
it was. To the contrary, Milton knew Barton used to be
the Knee MST—Zimmer’s top knee-product training
manager—and she thought he was qualified to update
the class based on this prior experience. No reasonable
jury could conclude that Milton, in an act of retaliation,
assigned Barton an important project she thought he
was fully qualified to perform. Accordingly, the district
court properly entered summary judgment for Zimmer
on Barton’s ADEA retaliation claim.
C. FMLA Interference
The FMLA permits eligible employees to take medical
leave under certain conditions. See 29 U.S.C. §§ 2612, 2614.
With one exception not applicable here, upon returning
to work, leave-taking employees are “to be restored by
the employer to the position of employment held by
No. 10-2212 17
the employee when the leave commenced” or “to be
restored to an equivalent position with equivalent em-
ployment benefits, pay, and other terms and conditions
of employment.” Id. § 2614(a)(1). However, a restored
employee is not entitled to “any right, benefit, or position
of employment other than any right, benefit, or position
to which the employee would have been entitled had
the employee not taken the leave.” Id. § 2614(a)(3)(B).
To prove his FMLA claim, Barton must establish that:
(1) he was eligible under the FMLA; (2) Zimmer was
covered by the FMLA; (3) he was entitled to FMLA leave;
(4) he provided sufficient notice of his intent to take
leave; and (5) Zimmer denied him benefits due under
the FMLA. Caskey v. Colgate-Palmolive Co., 535 F.3d 585,
590 (7th Cir. 2008). Only the fifth element is in dispute.
Barton claims he was not restored to the equivalent of
his old job when he returned from leave. Zimmer
responds that Barton was given the same or similar
duties he would have received had he not taken leave.
The undisputed evidence supports Zimmer. Barton
returned from leave the day after Richardson was termi-
nated. Throughout this period, Barton’s pay, benefits,
title, and rank remained intact. His job duties
undoubtedly changed, but that was inevitable. His only
duties prior to taking leave involved two short-term
projects that were completed during his leave. So when
Barton returned, he had no work to do. Business needs
unrelated to his leave required that the knee class
be updated. Barton was qualified to do this work based
on his past service as Knee MST (or so Milton rea-
18 No. 10-2212
sonably thought), and Milton assigned him the class. No
evidence suggests that she did this because Barton
took medical leave or that something different would
have occurred had Barton never left. The district court
properly entered summary judgment for Zimmer on
Barton’s FMLA claim.
A FFIRMED.
10-18-11