The 7th Circuit has affirmed a grant of summary judgment in an ADEA case, finding that though the plaintiff had indeed been treated very badly because of his age, it was impossible for the plaintiff to prove entitlement to any remedy that was authorized by the ADEA.
The plaintiff, Mr. Barton, worked in the sales training department for Zimmer, Inc., an orthopedic equipment manufacturer. A gentleman named Andy Richardson was promoted to become Barton’s new supervisor in May of 2004. The Seventh Circuit had nothing kind to say about Mr. Richardson:
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.
After Richardson had been Barton’s supervisor for about a year, he gave Barton a “a bad performance review.” This, apparently, was the last straw. Barton fired off a complaint to Zimmer’s VP of Human Resources, alleging age discrimination. The next day, he left town for a “previously scheduled one-week vacation.” The Court described what happened next:
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 be came emotionally unstable. Instead of returning to work after his vacation, Barton went on FMLA leave until late August to address his mental-health needs.
Barton filed an EEOC charge while he was on leave. Zimmer investigated Barton’s complaint, and eventually concluded that Richardson “was a divisive leader and belittled nearly everyone in the Sales Training Department.” Richardson was fired, and Barton returned to his position under a new supervisor. Barton struggled in complying with tasks assigned by this new supervisor (relating to updating the training for a “knee class”) and eventually went back on FMLA leave, and then long-term disability leave, again claiming psychological injury. He was eventually declared totally disabled, “accepted a retirement package from Zimmer,” and has not worked since. He then sued Zimmer, claiming (among other things) age discrimination in violation of the ADEA.
The problem with Barton’s ADEA claim, according to the 7th Circuit, was that he had no possible available remedy, no matter how badly Richardson had treated him:
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 emotional 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).
Barton claimed a desire for front pay, but the 7th Circuit held that he could never be awarded front pay, based upon the circumstances upon which he left employment with Zimmer:
To recover front pay as an equitable remedy in lieu of reinstatement, Barton would have to establish causation—that is, that Richardson’s discriminatory removal of his job duties caused the disability that prevents his reinstatement. See Pollard [v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 846 (2001)] (“In cases in which reinstatement is not viable . . . because of psychological 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.
Accordingly, there is no causal connection between Richardson’s discriminatory removal of Barton’s job duties and the psychological disability that prevents reinstatement from being a viable remedy. Barton’s disability was caused by an unrelated job assignment from his new supervisor.
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although Zimmer concedes for the sake of argument that Richardson removed Barton’s salesskills 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, … the ADEA provides no remedy.
The case is Barton v. Zimmer, Inc., 7th Cir. No. 10-2212.
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