The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
ROBIN BARNEY, )
)
Plaintiff, )
)
v. ) Case No. 3:17-CV-616 JD
)
ZIMMER BIOMET HOLDINGS, INC., )
)
Defendant. )
OPINION AND ORDER
This is an employment discrimination case arising out of Plaintiff Robin Barney’s
resignation from her post as a Senior Vice President for Defendant Zimmer Biomet Holdings
(“Zimmer”). Based on several events that occurred shortly before and after her resignation, Ms.
Barney filed a lawsuit, claiming that Zimmer discriminated against her because she was a
woman by ordering her to commit illegal acts, threatening to fire her if she refused, forcing her
resignation, and then denying her severance benefits. On July 11, 2017, Ms. Barney filed a
charge of gender discrimination with the EEOC based on being constructively discharged and
Zimmer withholding substantial severance pay and benefits. She then filed this suit on August
11, 2017.
I. Procedural Background
This case has a long procedural history, some of which is helpful to repeat here. Based on
several events that occurred shortly before and after her resignation, Barney filed a lawsuit,
alleging sex discrimination, breach of contract, and constructive discharge. In this suit, Ms.
Barney filed three amended complaints [DE 1; 16; 27] and Zimmer filed a partial motion to
dismiss seeking dismissal of Ms. Barney’s contract and constructive discharge claims made in
the Third Amended Complaint. [DE 30]. This Court granted Zimmer’s partial motion to dismiss
and, specifically, granted the motion to dismiss Ms. Barney’s breach of contract claims and
constructive discharge claim. [DE 67]. Shortly after the Court’s decision, Ms. Barney moved to
amend or correct her complaint in a Fourth Amended Complaint filed on December 6, 2018. [DE
69-1]. The magistrate judge denied in part Ms. Barney’s motion for leave to file the proposed
and updated constructive discharge claim as part of her Fourth Amended Complaint. [DE 80].
Shortly thereafter, Ms. Barney filed an objection to the magistrate judge’s decision [DE 82], but
two weeks later she withdrew it. [DE 83].
On May 2, 2019, Ms. Barney filed a new complaint in Marion Superior Court, Indiana,
asserting the same constructive discharge claim the Court had dismissed in this case—Barney I.
Zimmer subsequently removed the state complaint to the U.S. District Court for the Southern
District of Indiana, thereby opening a new case in the federal system—Barney II.1 Zimmer then
moved to transfer the case to the Northern District of Indiana, where Barney I was pending
before this Court. [DE 12 in Barney II]. On August 26, 2019, Barney I and Barney II were
consolidated without objection. Zimmer then filed a motion to dismiss Ms. Barney’s First
Amended Complaint from Barney II, again seeking dismissal of her constructive discharge
claim. [DE 98].
In its previous order [DE 118], this Court found that since Ms. Barney failed to appeal or
seek reconsideration of the denial of her motion to amend the constructive discharge claim
decision by the magistrate judge, she was precluded from seeking review of the claim a second
time. Ms. Barney had an opportunity to seek this Court’s review of the magistrate judge’s
decision but withdrew her objection and thus her opportunity for review before filing the
1 The case number for Barney II is 3:19-cv-00546.
constructive discharge claim in state court. [DE 82]. The Court explained that Ms. Barney’s
litigation decision to withdraw her objection to the magistrate judge’s order and pursue her claim
in another forum did not create good cause for this Court to review the amended complaint
again. See Arrigo v. Link, 836 F.3d 787, 798 (7th Cir. 2016). When withdrawing her objection to
the magistrate judge’s decision, Ms. Barney stated that she was electing “not to pursue her
objection to the Magistrate Judge’s Order [Dkt. 82] and has further elected to proceed in this
case with the Third Amended Complaint as the operative complaint.” [DE 83 at 2]. At that point,
Ms. Barney committed to her theory of the case and the Court dismissed her First Amended
Complaint in Barney II alleging constructive discharge.
Now before the Court is the Defendant’s Motion for Summary Judgment [DE 130] and
supporting memorandum [DE 131], both filed on October 27, 2020 in which it seeks dismissal of
Ms. Barney’s Title VII and EPA claims. For the following reasons, the motion for summary
judgement is granted.
II. Factual Background
In 2007, Ms. Barney became the Senior Vice President of Operations at Biomet,
reporting directly to Biomet’s CEO. Ms. Barney’s employment at Biomet was governed by an
agreement which provided for the payment of enhanced severance benefits if her employment
was terminated without “Cause” or if she resigned for “Good Reason” within twenty-four
months of a “Change in Control” or “CIC” (a change in the ownership of Biomet). In 2014,
Biomet and Zimmer announced they were merging, and that Ms. Barney would be one of three
females on its twelve-member Operating Committee. [DE 136 at 2]. Once the companies
formally merged, Ms. Barney became Senior Vice President of Global Operations and Logistics,
reporting directly to Zimmer’s CEO, David Dvorak. As a part of the merger, top executives such
as Ms. Barney were offered jobs with Zimmer and received a one-time restricted stock unit
award equivalent to the Biomet CIC cash severance payment that would inure two years after the
merger in July of 2017.2 Under this agreement and her new agreement with Zimmer in 2014, Ms.
Barney was only entitled to these benefits if she resigned for “Good Reason” and executed a
release after two years following the merger. Neither party claims that Ms. Barney resigned for
“Good Reason” as defined by the Biomet CIC Agreement. Ms. Barney was also eligible for
severance benefits if she met the requirements under Zimmer’s Restated Severance Plan. [DE
133-37 at 675]. Of the executives who made the switch from Biomet to Zimmer, six were male
and one (Ms. Barney) was female. Ms. Barney’s acceptance of the new position at Zimmer was
described as “the biggest get” as she was someone who was viewed as “royalty” in the healthcare
and medical device field. [Ex. E, Fisher Dep. 84:21-85:13].
In her new role, Ms. Barney was responsible for supply chain, operations, and logistics,
including manufacturing, distribution, procurement, and planning at all Zimmer sites. [DE 132 at
4]. Ms. Barney and Dave Kunz, Senior VP of Global Quality, Regulatory, and Clinical Affairs,
were responsible for bringing new products to plants in addition to producing and shipping
product manufactured by Zimmer. On Monday, September 12, 2016, the FDA arrived
unannounced at the Zimmer North Campus for an audit of the manufacturing site. Although
FDA audits are not unusual and are expected on a somewhat biannual basis, Ms. Barney testified
that this audit was intense, all consuming, and adversarial. [Ex. 10, Barney Dep. 441:6-19]. As a
result of the audit, Mr. Kunz placed a shipment hold on all products coming from the Zimmer
2 Ms. Barney’s employment offer from Mr. Dvorak explicitly states the following: “[Y]ou must waive your right to
the cash severance benefits to which you would have been entitled under the Biomet CIC Agreement in the event
you terminate your employment during the two years following transaction close for Good Reason (as defined in the
Biomet CIC Agreement) . . . .” [DE 132-4 at 4]. The offer letter explained that Ms. Barney would receive a one-time
award approximately equivalent to the value of the CIC cash severance payment provided in the Biomet CIC
Agreement two years after the merger contingent upon her continued employment.
North Campus, which impacted products manufactured elsewhere. [Ex. G, Kunz Dep. 41:11-
42:24]. Thus, the FDA audit caused supply problems, which also resulted in creating severe sales
issues for Zimmer. [Ex. D, Barney Dep. 320:4-19, 445:8-13]. Ms. Barney provided frequent
updates to the Operating Committee about these issues and key performance indices related to
manufacturing.
During this time period, Ms. Barney’s relationship with Mr. Dvorak, the CEO,
deteriorated. Prior to this point, Ms. Barney had already recognized that she was not a part of an
“inner circle” of male executives with whom Mr. Dvorak met with regularly. [Ex. 10, Barney
Dep. 232:20-233:18]. Ms. Barney testified that Mr. Dvorak regularly made demeaning
comments towards her during the Operating Committee meetings such as offering to provide her
with private tutoring so that she could better understand business strategy. [Id. at 406:16-407:11].
He did this even though Ms. Barney was extremely well-respected in her field and was described
as tough, having a lot of swagger, knowing her business, and providing “great input into the
senior meetings.” [Ex. E, Fisher Dep. 197:6-17]. Mr. Terry Martin, the Senior Director of
Facilities and Maintenance, also testified to attending two meetings with Ms. Barney and Mr.
Dvorak where he observed Mr. Dvorak become unhappy and aggressive with Ms. Barney after
she challenged him. [Ex. F, Martin Dep. 190:22-192:1-12]. Mr. Martin related that he felt
uncomfortable in the meetings but never confronted Mr. Dvorak about his treatment of Ms.
Barney. [Id. at 192:1-12]. Mr. Martin also testified that the Zimmer side of the newly merged
Zimmer-Biomet organization was not culturally prepared for a woman to be in Ms. Barney’s
position, especially within the Operations group. [Id. at 65:5-15; 95:10-15; 223:10-227:17].
During the week of October 11, 2016, as the FDA audit continued, Mr. Kunz informed
Mr. Dvorak that he was planning to terminate two employees due to performance issues. [Ex. 12,
Kunz Dep. 49:5-52:11]. Ms. Barney felt pressure from Mr. Dvorak to make organizational
changes within her department, which she understood to mean that he wanted her to fire some of
her employees. [Ex. D, Barney Dep. 365:3-16, 453:17-454:18]. Over the next week, Ms. Barney
was under increased pressure from a variety of sources. By October 14, Ms. Barney had to miss
an Operating Committee meeting due to being physically ill from anxiety and lack of sleep. [Ex.
E, Fisher Dep. 157:2-11]. During this same week, Daniel Florin, CFO of Zimmer, communicated
to Ms. Barney that she needed to come up with a good story for investors to explain the sales
shortfalls on the upcoming shareholders’ call. [Ex. D, Barney Dep. 414:5-418:18]. It was Ms.
Barney’s understanding that the CEO and CFO did not want to communicate to the shareholders
about Zimmer’s production shut down or the persistent supply chain issues. [Id. at 66:21-67:11].
Ms. Barney testified that she refused to come up with a story. On October 26, Ms. Barney
provided proposed organizational changes that did not include terminations to Mr. Dvorak, but
he did not view her proposal to be sufficient in making the necessary changes he required.
On October 28, 2016, Mr. Dvorak directly asked Ms. Barney to terminate two employees
within her organization. [Ex. D, Barney Dep. 75:19-76:9, 76:19-79:1]. Ms. Barney
communicated to him that she refused to fire employees who did not warrant termination and
stated that “the only head you have left to get is mine.” [Id. at 367:13-23]. Ms. Barney testified
that Mr. Dvorak was furious, told her that this was unacceptable, and that he wanted more from
her. It was following this conversation that Ms. Barney drafted her resignation email. She
testified that she felt she was being asked to do things that were unethical, immoral, and illegal.
[Id. at 428:17-432:5; DE 133-27]. Since the shareholder meeting was scheduled for the following
week, Ms. Barney felt she had no choice and that she had to take immediate action. [Ex. D,
Barney Dep. 55:7-20].
Later that morning, Ms. Barney sent her resignation email to employees in the HR
department, Jack Heeter and Bill Fisher. [DE 133-27]. In the email Ms. Barney states the
following, “Effective November 11, 2016 (or sooner if you choose), I will resign from Zimmer
Biomet. I feel that this action on my part is necessary and the right thing to do for the company.”
[Id.]. Ms. Barney testified that she sent the email to HR instead of to Mr. Dvorak, in order to give
them time to reach out and ask her to stay or to negotiate an exit deal. [Ex. D, Barney Dep.
458:5-23]. Instead of reaching out to her, Mr. Fisher immediately communicated her resignation
to Mr. Dvorak. [Ex. E, Fisher Dep. 88:16-89:4]. Mr. Fisher testified that he was shocked Ms.
Barney resigned as she was approaching two significant payment dates—the Biomet CIC payout
and retirement eligibility. [Id. at 80:2-82:25]. Moreover, under Zimmer’s Restated Severance
Plan, Ms. Barney was not eligible for a severance package. Employees, such as Ms. Barney,
were not eligible to receive severance benefits unless they (1) were notified in writing that their
employment was terminated; (2) signed the general release within the time period specified; (3)
executed a confidentiality, intellectual property, non-competition and/or non-solicitation
agreement; and (4) worked through the scheduled termination date. [DE 133-37 at 6675-76].
These benefits represented a significant amount of money for Ms. Barney—the restricted stock
units amounted to two years of base salary pay and two years of bonus at 100% of earn out,
which would have become available to Ms. Barney in July of 2017 (in about eight months). [Ex.
E, Fisher Dep. 81:14-82:14]. Ms. Barney was also only six months away from being able to
retire and take the stock options with her. [Id. at 82:15-25]. Following her resignation, Mr. Fisher
and Mr. Heeter confirmed that she would not receive her Biomet CIC benefits or a Zimmer
severance package. Neither reached out to Ms. Barney to discuss this with her.
Mr. Dvorak also did not reach out to Ms. Barney immediately but instead accepted her
resignation on November 1, 2016, the day after the shareholder call. [DE 136-11]. During the
earnings call, neither Mr. Dvorak nor Mr. Florin told the shareholders about the production shut
down due to the FDA audit.3 Zimmer also provided the FDA with a list of employees who were
let go due to necessary changes that were being made as a result of the audit and Zimmer noted
on it that Ms. Barney “ceased to serve in this position on November 2, 2016 and she has left the
company.” [DE 136-14; 132-22 at 3]. Her resignation was listed as one of the “management
changes [that] have been implemented by Zimmer Biomet to address Quality Management
System performance issues noted at the Warsaw North Campus, along with underlying quality
culture issues now recognized.” [DE 132-22 at 3].
Following her resignation, Zimmer did not pay Ms. Barney severance benefits pursuant
to the agreements she had in place because she had resigned and left the company before she
could access her restricted stock units. Notably, Mr. Fisher testified that an employee who
voluntarily resigns is not entitled to severance benefits under the company’s Severance Plan. [DE
133-37 at 675-76]. Ms. Barney argues that five of seven former Biomet executives received CIC
severance and she was one of two who did not. On November 28, 2016, Ms. Barney sent a letter
to Mr. Dvorak stating the following: “I believe that my employment with the company was
effectively terminated by the company, without cause, and that I am entitled to the value of my
Biomet CIC payout.” [DE 132-23]. Ms. Barney also claims that two former Biomet executives,
Stuart Kleopfer and Wil Boren, received some form of payment or severance when they left
Zimmer. [DE 136 at 25].
3 On December 2, 2016, shareholders filed a securities class action against Zimmer and individual named defendants
including Mr. Dvorak and Mr. Florin. As a result of the suit, Zimmer offered up to $50 million to pay class
members’ claims, which was approved on May 21, 2020. [DE 251].
Ms. Barney later filed this suit against Zimmer. She argues that she was constructively
discharged from her position, and no one at the company tried to get her to stay, tried to help her
become eligible for additional benefits, or offered to help her exit from the company so she could
receive severance benefits. She initially asserted numerous claims in her Complaint, but only her
Title VII and Equal Pay Act claims remain.
III. Summary Judgment Standard of Review
On summary judgment, the moving party bears the burden of demonstrating that there “is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). So, the Court must construe all facts in the light most favorable to the
nonmoving party, making all legitimate inferences and resolving all doubts in its favor. Cung
Hnin v. TOA, LLC, 751 F.3d 499 (7th Cir. 2014). A “material” fact is one the substantive law
identifies as impacting the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). When there is a genuine issue as to any such material fact and a reasonable jury
could return a verdict in favor of the nonmoving party, summary judgment is inappropriate. Id.
Conversely, where a factual record exists that would not allow a rational jury to find for the
nonmovant, there is no genuine issue of fact for trial and summary judgment is appropriate.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing Bank of
Ariz. v. Cities Servs. Co., 391 U.S. 253, 289 (1968)).
Though the Court must construe the facts in the light most favorable to the non-moving
party, she cannot simply rest on the allegations or denials contained in her pleadings: she must
present sufficient evidence to show the existence of each element of her case on which she will
bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). If the plaintiff is
unable to satisfy the legal requirements necessary to establish his or her case, summary judgment
is not only appropriate, but mandated. See Celotex, 477 U.S. at 322; Ziliak v. AstraZeneca LP,
324 F.3d 518, 520 (7th Cir. 2003). Further, a failure to prove one essential element “necessarily
renders all other facts immaterial.” Celotex, 477 U.S. at 323.
IV. DISCUSSION
A. Barney’s Title VII Claim
“Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended,
prohibits employment discrimination on the basis of race, color, religion, sex, or national origin.”
Ricci v. DeStefano, 557 U.S. 557, 577 (2009). “At the summary-judgment stage, the proper
question is ‘whether the evidence would permit a reasonable factfinder to conclude that the
plaintiff’s race, ethnicity, sex, religion, or other proscribed factor caused the [plaintiff’s]
discharge or other adverse employment action.’” Ferrill v. Oak Creek-Franklin Joint Sch. Dist.,
860 F.3d 494, 499 (7th Cir. 2017) (quoting Ortiz v. Werner Enters., Inc., 834 F.3d 760, 765 (7th
Cir. 2016)) (alteration in original).
When reviewing discrimination claims, the Court recognizes that the McDonnell Douglas
framework analysis is no longer required and is now viewed simply as one way to organize and
present a claim of discrimination. The Seventh Circuit has stated that plaintiffs do not have to
“rely on the McDonnell Douglas method to carry that burden; she may well have other ‘direct or
circumstantial evidence that supports an inference of intentional discrimination.’” Joll v.
Valparaiso Cmty. Sch., 953 F.3d 923, 929 (7th Cir. 2020) (citation omitted). Instead, plaintiffs
may point to “ambiguous or suggestive comments or conduct; better treatment of people
similarly situated but for the protected characteristic; and dishonest employer justifications for
disparate treatment.” Joll, 953 F.3d at 929. And as the Seventh Circuit has recognized, “[f]ew
discrimination cases are so straightforward—indeed they are often factually complex and require
sifting through ambiguous pieces of evidence.” Ortiz, 834 F.3d at 765. With a Title VII claim,
the “fundamental question at the summary judgment stage is simply whether a reasonable jury
could find prohibited discrimination.” Bass v. Joliet Pub. Sch. Dist. No. 86, 746 F.3d 835, 840
(7th Cir. 2014).
Ms. Barney has alleged that Zimmer discriminated against her on the basis of her gender
when it forced her resignation, and then denied her severance benefits. Notably, Ms. Barney does
not rely on the McDonnell Douglas framework to make her gender discrimination argument. But
since the Defendants addressed the elements of the framework in their brief, the Court will
address the elements as well. [DE 132 at 14-17]. Under this framework, the plaintiff carries the
initial burden of establishing a prima facie case of employment discrimination, which can be
accomplished by setting forth evidence that (1) she is a member of a protected class, (2) her job
performance met the employer’s legitimate expectations, (3) she suffered an adverse
employment action, and (4) another similarly situated individual who was not in the protected
class was treated more favorably than the plaintiff. McKinney v. Office of Sheriff of Whitley Cty.,
866 F.3d 803, 807 (7th Cir. 2017). If established, this prima facie case creates a presumption of
discrimination, and the burden then shifts to the employer to articulate a legitimate,
nondiscriminatory reason for its employment decision. Id. (quoting McDonnell Douglas, 411
U.S. at 802). If the employer does this, the burden shifts back to the plaintiff to produce evidence
that the stated reason is a mere pretext. Id. (quoting Coleman v. Donahoe, 667 F.3d 835, 845 (7th
Cir. 2012)).
Thus, though the Court has structured its order in response to the defendants’ brief, which
still organizes its arguments utilizing the McDonell Douglas framework, it does not limit itself to
analyzing the claim within the framework by itself and considers all evidence presented by the
parties as directed in Ortiz. See also, Reymore v. Marian Univ., No. 1:16-cv-00102-SEB-DML,
2017 WL 4340352, at *8 (S.D. Ind. Sept. 29, 2017) (“[O]ur understanding is that a district court
need not limit itself to analyzing the evidence only according to the McDonnell Douglas
template, nor should it be bound by the formulaic foxtrot which has developed under that
framework.”). Thus, the Court analyzes the claim within the framework and considers the claim
in the context of all presented evidence as directed by Ortiz. The parties do not appear to
disagree on the first two elements of the framework (that Ms. Barney is in a protected class or
that there were any issues with her job performance), but they do disagree as to whether Ms.
Barney suffered an adverse employment action and whether similarly situated individuals at
Zimmer were treated more favorably than she was. Thus, the Court’s analysis will focus on those
two elements in addition to other evidence of discrimination identified by Ms. Barney.
1. Whether Ms. Barney Suffered an Adverse Employment Action
Ms. Barney argues that she suffered an adverse employment action in the form of
constructive discharge and that she need not allege egregious sex-based harassment to show
constructive discharge. [DE 136 at 18]. Ms. Barney asserts that constructive discharge occurs
where based on the employer’s actions, “the handwriting [was] on the wall and the axe was
about to fall.” Fischer v. Avanade, Inc., 519 F.3d 393, 409 (7th Cir. 2008). While the Court
previously addressed Ms. Barney’s state law claim of constructive discharge in its order
responding to the motion to dismiss [DE 67], she is advancing this claim under Title VII.
Unfortunately, for Ms. Barney, the claim has little success here. Ms. Barney alleges that she was
forced to resign because she would not mislead investors or inappropriately fire her employees.
But Ms. Barney provides no evidence to support her claim that she would have been fired had
she failed to meet these requests. And, even if Ms. Barney could support these allegations with
sufficient evidence, she fails to provide any evidence connecting the constructive discharge to
her gender. Simply put, even if these demands were inappropriate there is nothing to suggest
they were motivated by her gender.
“Constructive discharge, like actual discharge, is a materially adverse employment
action.” E.E.O.C. v. Univ. of Chicago Hosps., 276 F.3d 326, 331 (7th Cir. 2002). “But to be
actionable under Title VII the work conditions need to be more than merely intolerable—they
need to be intolerable in a discriminatory way.” Chambers v. Am. Trans Air, Inc., 17 F.3d 998,
1005 (7th Cir. 1994). “The central question is whether the employer would have taken the same
action had the employee been of a different [gender], all other conditions remaining the same.”
Togba v. Cty. of Cook, No. 98 C 5756, 2001 WL 1035215, at *6 (N.D. Ill. Sept. 6, 2001) (citing
Carson v. Bethlehem Steel Corp., 82 F.3d 157, 158 (7th Cir. 1996)). The Court’s focus is on
whether any of the incidents, and other supporting evidence, described by Ms. Barney could
support the reasonable inference that the alleged constructive discharge was based on gender
discrimination. The Court finds that the evidence does not support such an inference.
Ms. Barney has provided evidence demonstrating that she was placed under significant
stress by leadership at Zimmer not only to implement organizational changes by firing
employees within her subdivision but also to provide a reason for the sales shortfall on the
upcoming investors call. The Court recognizes that Ms. Barney was placed under a significant
amount of stress due to these expectations from Zimmer leadership, but it does not find that
Zimmer’s actions against Ms. Barney were the result of her gender. Even if there was some
evidence of a “boys club” [Ex. F, Martin Dep. 172:18-173:8] and that Zimmer had a reputation
for being less female friendly than Biomet [Id. at 224:14-225:14], the Court does not find these
gender-related experiences to have a direct connection to Ms. Barney’s resignation. Nor does it
find evidence demonstrating Ms. Barney’s imminent or inevitable termination. Instead, it seems
that the pressure placed on Ms. Barney by Zimmer leadership was related more to her position as
head of manufacturing than to her position as a woman. Only a person at Ms. Barney’s level
within manufacturing could have made the organizational changes desired by the CEO and could
have come up with an acceptable explanation for the sales shortfall for investors. And, while it
may seem as though Zimmer used the FDA audit to blame legacy Biomet executives for any
problems that occurred as many were let go during that time period, again, the animus there
would be based on previous employment at Biomet and not on gender.4
Finally, there is some evidence that Mr. Dvorak was treating Ms. Barney harshly in her
last few months with Zimmer. Ms. Barney testified that she was being excluded from meetings
between Mr. Dvorak and other male VPs, that he demeaned her in meetings, and that he was
quick to put down her ideas or questions. [Ex. 10, Barney Dep. 406:9-408:22]. Ms. Barney’s
perspective of Mr. Dvorak’s treatment of her was corroborated by Mr. Fisher with whom she
complained to in person. [Ex. E, Fisher Dep. 69:2-22]. Mr. Dvorak’s aggressive attitude towards
Ms. Barney was also corroborated by Mr. Martin who participated in two meetings where Mr.
Dvorak’s treatment of Ms. Barney made him uncomfortable. [Ex. F, Martin Dep. 190:15-197:8].
But the evidence does not demonstrate that Mr. Dvorak’s treatment of Ms. Barney was gender
based, as opposed to professional disagreements. And, even if so, such conduct is not sufficient
to constitute a hostile environment. See Patton v. Indianapolis Pub. Sch. Bd., 276 F.3d 334, 339
(7th Cir. 2002) (hostile work environment claim failed where employee alleged that her
supervisor “treated her in a rude, abrupt, and arrogant manner, ignored her work-related
4 Mr. Martin testified that he believed legacy Zimmer managers were using the audit to blame legacy Biomet
executives for the problems in order to eliminate them. He noted that three legacy Biomet employees (Rex White,
Richard Castaneda, and Mikko Matero) were let go towards the beginning of the audit. [Ex. F, Martin Dep. 151:4-
152:21]. Ms. Barney was also a legacy Biomet employee.
suggestions and failed to keep her informed about changes at work”). Moreover, Ms. Barney’s
reasoning for her resignation is centered upon the investor call and Mr. Dvorak’s desire for her to
fire employees in her subdivision. But Mr. Kunz, Ms. Barney’s counterpart in operations, had
already fired several employees within his subdivision after receiving pressure from Mr. Dvorak
to make changes. Thus, there is no evidence demonstrating Mr. Dvorak’s actions towards Ms.
Barney on these fronts were because of her gender.
The evidence does demonstrate that the culture was very male-dominant at Zimmer, or
significantly more so than it was at Biomet, but the evidence does not demonstrate this male-
dominated atmosphere drove Ms. Barney to resign. Even if Ms. Barney could establish that her
working conditions were intolerable because of the pressure from the CEO and CFO, she could
not demonstrate they were made intolerable because of her gender. Thus, the Court cannot
determine that a reasonable factfinder would conclude that Ms. Barney’s gender caused her
constructive discharge. The Court will address Ms. Barney’s severance argument in the next
section.
2. Whether Similarly Situated Individuals Were Treated More Favorably
Ms. Barney also argues that under both Title VII and the Equal Pay Act, she can show
that she was treated less favorably than similarly situated male employees when Zimmer denied
her severance pay. [DE 136 at 24]. “Similarly situated employees must be ‘directly comparable’
to the plaintiff ‘in all material respects,’ but they need not be identical in every conceivable
way.” Coleman, 667 F.3d at 846 (quotations and citations omitted). If the distinctions between
the plaintiff and the proposed comparators are not “so significant that they render the comparison
effectively useless,” the similarly situated requirement is satisfied. Humphries v. CBOCS West,
Inc., 474 F.3d 387, 405 (7th Cir. 2007). Normally a plaintiff must at least show that the
comparators (1) “dealt with the same supervisor,” (2) “were subject to the same standards,” and
(3) “engaged in similar conduct without such differentiating or mitigating circumstances as
would distinguish their conduct or the employer's treatment of them.” Gates v. Caterpillar, Inc.,
513 F.3d 680, 690 (7th Cir. 2008). Finally, the Supreme Court has stated that “precise
equivalence . . . between employees is not the ultimate question.” McDonald v. Santa Fe Trail
Transp. Co., 427 U.S. 273, 283 n.11 (1976). But the proposed comparator must be similar
enough to permit a reasonable juror to infer, in light of all the circumstances, that an
impermissible animus motivated the employer’s decision. Coleman, 667 F.3d at 841.
Ms. Barney asserts that Zimmer treated similarly situated males more favorably,
especially regarding eligibility for receiving severance packages when leaving Zimmer. More
specifically, she argues that Stuart Kleopfer and Wil Boren both received severance packages
after indicating to the company that they were considering leaving. She claims that both
employees were disgruntled with their jobs and “raised their hands to leave” when Zimmer laid
out all the options in terms of what it could do for them as they were leaving the company. In
contrast, Ms. Barney asserts that when she was allegedly forced to resign, no one at Zimmer tried
to get her to stay, help her become eligible for additional benefits, or offered to exit her from the
company so that she could receive a severance package. In response, Zimmer argues that Ms.
Barney has not identified similarly situated male employees who were treated more favorably
than she was.
Like Ms. Barney, Mr. Kleopfer directly reported to the CEO of Zimmer, he was a legacy
Biomet senior leader, and he also left the company before he could receive the CIC restricted
stock benefit. [DE 136-15; DE 136-3; Ex. E, Fisher Dep. 107:17-21]. Mr. Boren was also
another legacy Biomet employee who was offered a position as Vice President and General
Manager Innovative and Marketing Services and Solutions at Zimmer, although Mr. Boren’s
supervisor was not the CEO. [DE 132-40]. As former Biomet executives, both Mr. Kleopfer and
Mr. Boren were eligible for the same restricted stock benefit from the Biomet CIC Agreement as
Ms. Barney, and both left within two years of the merger. [DE 132-9 at 13]. Notably, they were
all subject to the same rules as defined in the Zimmer Severance Plan and the Biomet CIC
Agreement. [DE 133-37 at 2-3; Ex. E, Fisher Dep. 100:5-11]. But this is where the similarities
between the employees ends.
Unlike Ms. Barney, Mr. Kleopfer communicated with Zimmer about potentially leaving
before officially resigning from his position. Mr. Fisher (SVP of Human Resources) testified that
it was Mr. Kleopfer who initiated his departure and not Zimmer. [Ex. E, Fisher Dep. 124:19-21].
But before resigning, Mr. Kleopfer met with Mr. Fisher to discuss his options and Mr. Fisher
personally tried to persuade him to stay at Zimmer. [Id. at 123-24]. Mr. Fisher prepared
information for Mr. Dvorak regarding the thresholds for Mr. Kleopfer’s bonus, integration
bonus, equity, and CIC severance payout levels. [Ex. E, Fisher Dep. 99:18-22]. Mr. Fisher also
sent Mr. Kleopfer a memorandum outlining Zimmer’s understanding of his transition plan which
assumed he would tender his official notice of resignation the next month. [DE 132-31].
Ultimately, Zimmer and Mr. Kleopfer reached an agreement where he delayed his resignation for
several months and he received approximately $600,000 in post-employment payments, which
Mr. Fisher testified was from his bonus and was not a severance payout. [Ex. E, Fisher Dep.
94:6-25].
Similarly, Mr. Boren also met with Zimmer to communicate that he was unhappy in his
position and that his new role was not going well. [Id. at 183:7-22]. In response, Zimmer
immediately terminated Mr. Boren from his position. Zimmer classified his separation as a
termination of employment “without cause” during the two-years following the merger, which
qualified him for CIC severance benefits. [Id. at 2]. HR representative Mr. Cultice also testified
that Mr. Boren’s separation from Zimmer was classified as involuntary without cause. [Ex. J,
Cultice Dep. 22:11-18]. Because Mr. Boren’s termination was “involuntary without cause,” he
was eligible for severance pay, which he received in the form of a lump sum payment of over
$1.1 million. [DE 132-42 at 6]. But Mr. Cultice testified that Mr. Boren received severance
pursuant to the Biomet CIC agreement rather than the Zimmer Severance Plan since he left
within two years of the merger being completed. [Ex. J, Cultice Dep. 26:11-16].
When Ms. Barney officially resigned from Zimmer, she sent an email to HR employees
with “Resignation” in the subject line. [DE 132-3]. Notably, the content of the email was very
clear that Ms. Barney was giving her two weeks’ notice and was officially leaving Zimmer. In
the email Ms. Barney states the following:
“Effective November 11, 2016 (or sooner if you choose), I will resign from Zimmer
Biomet. I feel that this action on my part is necessary and the right thing to do for
the company …. It has been an honor to work with the many talented and dedicated
individuals that I have interacted with over nearly 10 years. Thank you for making
me part of your family.”
[DE 133-27]. Her email cannot be read as one where she is “raising her hand” to leave or asking
for help in determining the best exit strategy. As Ms. Barney claims, despite being similarly
situated within Zimmer, no one in Human Resources, including Mr. Fisher, tried to persuade her
to stay longer. Ms. Barney argues that she specifically sent her resignation to Mr. Fisher and not
to Mr. Dvorak, the CEO, in order to provide him with the opportunity to reach out and try to get
her to stay. [Ex. D, Barney Dep. 458:6-23]. But her email does not communicate the concept that
Ms. Barney is possibly leaving or thinking about leaving or asking for help in leaving with a
package, instead it very clearly states she is resigning and gives her two weeks’ notice. [DE 132-
3]. The Zimmer Severance Plan states that employees are not eligible to receive severance
benefits if there is a “[v]oluntary termination of employment or retirement, or resignation of
employment before a job-end date that has been specified by the Company.” [DE 133-37 at 3].
Moreover, Ms. Barney’s resignation came within the two years following the merger of Biomet
and Zimmer, which also left her ineligible for severance benefits under the Biomet CIC
Agreement. [DE 132-4 at 4].
While Mr. Kleopfer’s and Mr. Boren’s roles were somewhat comparable to Ms. Barney’s
role within Zimmer, their conduct when considering and communicating with the company that
they were prepared to leave was significantly different. The problem with Ms. Barney’s reliance
on these two men as comparators is that they left their employment with Zimmer in a very
different manner than she did. The distinction in how they initiated their exit from Zimmer and
how they ultimately did leave Zimmer is significant given that it explains the different severance
or exit packages (or lack thereof) they each received from Zimmer. See Barbera v. Pearson
Educ., Inc., No. 1:16-cv-2533-JMS-DML, 2017 WL 6616586, at *9 (S.D. Ind. Dec. 28, 2017),
aff'd, 906 F.3d 621 (7th Cir. 2018). Thus, a major “differentiating or mitigating circumstance”
distinguished Zimmer’s treatment of individuals who immediately resigned from Zimmer like
Ms. Barney as compared to other individuals who were terminated like Mr. Boren or who
negotiated an exit package like Mr. Kleopfer. Ms. Barney’s immediate resignation from Zimmer
constitutes a differentiating circumstance such that her identified comparators are not similarly
situated to her. Moreover, Ms. Barney failed to identify any male co-worker who immediately
resigned from Zimmer and also received a severance package.
When considering all the evidence, the Court does not find that either Mr. Kleopfer or
Mr. Boren were similarly situated or treated more favorably than Ms. Barney. McDonald, 427
U.S. at 283 n.11 (quoting McDonnell Douglas, 411 U.S. at 804). Under the Zimmer Severance
Plan, an employee who resigns is not eligible for severance benefits. Mr. Kleopfer and Mr.
Boren were not treated more favorably than Ms. Barney—they simply did not outright resign and
thus the policies regarding resignations did not apply to them.
3. Considering the Evidence of Discrimination under Ortiz
Finally, even considering Ms. Barney’s arguments outside the confines of the McDonnell
Douglas framework and the similarly situated co-worker analysis, when viewing the evidence in
the light most favorable to Ms. Barney, she has not offered evidence that, when viewed as a
whole, permits an inference of discrimination. See Ortiz v. Werner Enters., Inc., 834 F.3d 760,
765 (7th Cir. 2016). Simply put, Ms. Barney has offered no evidence that her gender had
anything to do with her alleged constructive discharge or the denial of her severance package.
And, even if Ms. Barney was right that Zimmer or at least the employees in the HR department
made no effort to get her to stay longer, nothing suggests that this was a result of her sex, which
is the relevant question. See Owens v. Old Wisconsin Sausage Co., Inc., 870 F.3d 662, 667 (7th
Cir. 2017). Ms. Barney clearly stated that she did not include Mr. Dvorak on her resignation
email in order to give HR employees Mr. Fisher and Mr. Heeter an opportunity to reach out to
her. The facts do not suggest that either Mr. Fisher or Mr. Heeter had any animus towards Ms.
Barney, and, in fact, they seemed to be supportive of her when compared to other employees at
Zimmer. [DE 132-14]. Zimmer has clearly demonstrated that severance package decisions are
based on policy and Ms. Barney was unable to demonstrate otherwise. Accordingly, the Court
concludes that a reasonable jury could not infer that Zimmer treated similarly situated employees
more favorably than Ms. Barney nor that her termination, as well as the failure of human
resources to respond differently to her resignation, was based upon her gender.
The Court finds that Ms. Barney has not presented evidence from which a jury could find
that she was constructively discharged because of her sex as she claims. She also has not offered
evidence from which the jury could find that Zimmer’s explanation for not providing her with
severance was based on her gender or that Zimmer treated comparable male co-workers more
favorably than her. When viewing the evidence collectively, Ortiz, 834 F.3d at 765, it fails to
point to Ms. Barney’s sex as the reason for her alleged constructive discharge and denial of
severance. “To avoid Title VII sex-discrimination liability, [the Defendant] did not need to make
wise or even generally fair decisions, so long as it did not discriminate on the basis of sex.”
Barbera v. Pearson Educ., Inc., 906 F.3d 621, 630 (7th Cir. 2018). The Court finds that to be the
case here, Ms. Barney cannot demonstrate that her treatment was discrimination on the basis of
sex. Accordingly, the Court must grant Zimmer’s motion for summary judgment on Ms.
Barney’s Title VII claim.
B. Ms. Barney’s Equal Pay Claim
Although Ms. Barney’s claims here are essentially identical—and she has treated them
identically—the Equal Pay Act (EPA) and Title VII present independent remedies, and Title
VII’s coverage of equal pay claims is broader than the EPA’s. Cullen v. Ind. Univ. Bd. of
Trustees, 338 F.3d 693, 703 (7th Cir. 2003) (citing Washington County v. Gunther, 452 U.S. 161,
178-80 (1981)). Thus, the Court will address Ms. Barney’s EPA claim separately. Ms. Barney’s
EPA claim is premised on her theory that similarly situated male executives were awarded
severance when she was denied it. The Equal Pay Act prohibits employers from paying
employees different wages based on gender. 29 U.S.C. § 206(d); Warren v. Solo Cup Co., 516
F.3d 627, 629 (7th Cir. 2008). To establish a prima facie case of wage discrimination under the
EPA, a plaintiff must show, by a preponderance of the evidence, that “(1) higher wages were
paid to a male employee, (2) for equal work requiring substantially similar skill, effort and
responsibilities, and (3) the work was performed under similar working conditions.” Id. No
proof of discriminatory intent is required. Id.; Cullen, 338 F.3d at 699.
If Ms. Barney establishes a prima facie case, the burden then shifts to Zimmer to
establish one of four statutory defenses, “which kick in if the difference in pay is attributed to (i)
a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or
quality of production; or (iv) a differential based on any other factor other than sex.” Warren,
516 F.3d at 620; 29 U.S.C. § 206(d). The last exception is a “broad, ‘catch-all’ exception and
embraces an almost limitless number of factors, so long as they do not involve sex.” Warren, 516
F.3d at 620 (quoting Fallon v. Illinois, 882 F.2d 1206, 1211 (7th Cir.1989)). In other words, the
EPA establishes a rebuttable presumption of sex discrimination where an employee shows that
an employer pays members of one sex less than members of the opposite sex; and the employer
can rebut the presumption by offering a gender-neutral justification for doing so. Id. at 629. The
justification need not be a “good reason,” but it has to be bona fide and gender neutral – the
employer “cannot use a gender-neutral factor to avoid liability unless the factor is used and
applied in good faith.” Id. (quoting Fallon, 882 F.2d at 1211). Here, Zimmer relies on the fourth
factor and argues that any differential in severance benefits received by Ms. Barney and her
alleged comparators was based on factors other than gender.
As the Court noted in the previous section, it does not recognize Mr. Kleopfer or Mr.
Boren to be male comparators to Ms. Barney. But even if the Court found them to be relevant
comparators to Ms. Barney, her EPA claim would still fail for the same reasons her Title VII
claim failed—she cannot demonstrate that the denial of severance was based on her gender. The
differences between Ms. Barney and these two men are related to how they left Zimmer, which
directly impacted what severance polices were applied to them and what benefits they received.
Ms. Barney officially resigned and was not asked to stay on at Zimmer. Mr. Kleopfer indicated
that he was planning to leave Zimmer and HR employees worked with him to delay his official
resignation by several months. Mr. Boren also indicated that he was planning to leave Zimmer
and the company let him go immediately. Zimmer’s severance policy addresses each of these
circumstances and when providing severance is allowed in each instance.5 Even Mr. Fisher, who
spoke very highly of Ms. Barney, stated that she was treated 100% consistently with company
policy. [Ex. E, Fisher Dep. 197:18-21]. Mr. Fisher and Mr. Cultice reviewed the provisions of
Ms. Barney’s Employment Agreement, which specifically stated that she would waive her right
to cash severance benefits which she was entitled to under the Biomet CIC Agreement if she
terminated her employment during the two years following the merger. [DE 136-16; 132-4].
Thus, under both companies’ policies, she was not eligible for severance benefits.
Ms. Barney has provided no evidence of another male employee, similarly situated to her,
who immediately resigned and also received a severance package. Moreover, Zimmer has put
forth evidence that the difference in severance benefits was based on a factor other than sex;
specifically, the difference was based on how the employees left their employment with Zimmer.
Ms. Barney has not put forth evidence to place the facts surrounding that rationale in dispute.
Therefore, summary judgment is appropriate based on Zimmer’s affirmative defense of the
severance benefits being based on a “factor other than sex.” See 29 U.S.C. § 206(d)(1)(iv).
5 In his deposition, Mr. Fisher agreed that a presentation was created demonstrating the “options for different forms
of payment to Mr. Kleopfer including considering a mutually agreed separation, or an involuntary termination, or a
retirement and various compensation that would flow from each of those decisions.” [Ex. E, Fisher Dep. 100:5-11].
V. CONCLUSION
For the foregoing reasons, the Court GRANTS Zimmer’s motion for summary judgment
as to Count I and Count II. The Clerk is DIRECTED to enter judgment in favor of the
Defendant.
SO ORDERED.
ENTERED: July 29, 2021
/s/ JON E. DEGUILIO
Chief Judge
United States District Court